Balkinization: Read me whine

Read me whine

Sandy Levinson

Consider current issues of two leading ostensibly "progressive" journals, The Boston Review and the American Prospect. The former, which bills itself as "a political and literary forum" (though it doesn't appear to include a letter-to-the-editors page for its readers to participate in the forum) has, in the November/December issue, an interesting article by William Hoagland, "Constitutional Conventions." Hoagland is the author of The Whiskey Rebellion and the forthcoming Inventing American History. I have no doubt he is an interesting person. That being said, I hope that some of you will appreciate my disappointment when I actually read the piece, which is a review of the American Constitution Center in Philadelphia and an attack on same for allegedly promoting an anodyne "consensus" view of American history instead of the more Beardian class struggle that Hoagland prefers. He says that the promotion of this consensus view has helped to blind the contemporary American public to the extent to which the Constitution is anti-democratic. I 0bviously don't object to this general argument, even if I think he is at least a bit anachronistic in his view of truly "democratic" possibility in late 18th century America. What did dismay me, however egocentric it is to say so, is Hoagland's seemingly complete ignorance of the fact that there are some contemporary writers, including Dan Lazare, Robert Dahl, Larry Sabato, and myself, who are far more interested in stirring a debate about the contemporary inadequacies of the Constitution than going over, once more, whether the Constitutional Convention was a collection of demigods or of militant opponents of the kind of democracy represented by the Shays Rebellion and, later, the Whiskey Rebellion. Perhaps trashing the Framers is thought to be necessary condition for criticizing the Constitution today, though I don't think so. One can say they did the best they could for their time and provided us with the example, which we've chosen to ignore, of responding to new exigencies with truly radical thought. But, hey, if returning to Beard would generate more contemporary discussion of the Constitution, that's fine.

I'd be considerably happier, of course, if the Boston Review had taken any cognizance of either Sabato's or my book, both of which I continue to believe have something to say to people interested in achieving a truly "progressive politics."

But my disappointment with the Boston Review (which I will continue to subscribe to, if for no other reason than Alan Stone's always fascinating movie reviews) is as nothing compared with my reaction to the issue of The Ameican Prospect (which I also, of course, subscribe to) that arrived in today's mail. It includes a 15-page special section on "Revitalizing Democracy," financed by grants of the Rockefeller Brothers Fund, the Carnegie Corporation of New York, and The Joyce Foundation, with contributions by a number of first-rate authors, including Balkinization's sometime contributor (and friend) Heather Gerken.

There is, alas, not a word in the fifteen pages that suggests that anyone interested in "revitalizing democracy" might actually be looking at the Constitution and asking whether it works for or against achieving the goals that the American Prospect sets forth for America (and which I share). Again, I, and I assume Sabato, would be happier if critics grappled with our arguments and then disagreed with them rather than pretend that no such arguments exist.

What is dismayingly typical is the first piece, by Bob Edgar, idenified as "the president and CEO of Common Cause, who offers four suggestions. The first two involve good-government electoral reform, that I certainly endorse, but says nothing about the anti-democratic electoral college. The fourth suggestion is to "restore the Constituion":

The new Congress and administration must work to restore the rule of law, the separation of powers, and the respect for human rights and the Constitution. We need more than just a government that enacts sound policies. We need a democracy capable of building broad and resilient support for the changes, sacrifices, and disruptions that are inevitable. And we need to rebuild the structures of democracy that hold power accountable, especially for the poor, the powerless, and the voiceless.

With all due respect (a dead rhetorical giveaway), the foundations should sue for their money back if this is all he can come up with. I certainly agree that we should "respect" the parts of the Constitution that are worthy of our respect. But does it occur to Mr. Edgar that there may be some parts of the Constitution that are not worthy of respect precisely because they reinforce the lack of accountability and help to assure that the poor, the powerless, and the voiceless will continue to be systematically screwed by a system that, as Hoagland well points out, wasn't constructed with their interests in mind in the first place? Anyone interested in assuring better accountability, for example, should look at how "the opposition parties" are treated in other constitutional systems, including Germany. Rick Pildes and Daryl (no relation) Levinson wrote a brilliant article several years ago in the Harvard Law Review on "the separation of parties, no powers." It should be at the heart of contemporary public discussion.

Larry Marx, the executive director of the Donor Collaborative of Wisconsin, has a three page article calling for "a broader definintion of democracy," with the subhead "Small reforms won't bring the system-wide change we need." Amen, brother. But it turns out that Marx, too, doesn't seem to contemplate even the possibility that we might look at the Constitution if we want "system-wide change we need." Of course, the reason may be that Article V dooms us to failure with regard to any such efforts, so it's simply easier to continue with small- or medium-size reforms (many of them, I hasten to add, that are fine ideas) than even to discuss any more ambitious alternatives. This repression of any radical thought is one of the reasons I have come truly to despise Article V, since it's pernicious consequences go well beyond simply preventing some changes I might support (and, to be sure, sometimes stopping changes I oppose).

Forgive me for the self-indulgence of this posting. But it really does rankle to watch one's erstwhile political allies, committed to all sorts of good goals, whether it's further "democratization" of American politics or helping the poor and the currently voiceless, simply maintain a truly willful ignorance to the possibility that our Constitution is at least as much the problem as the solution to the ills they all identify. If they set out the limits of "change we can believe in," we really are doomed, as argued in an extremely interesting and troubling review elsewhere in that issue of The American Prospect, by Chris Mooney, of two books on global warming and the seeming incapacity of our political system (or, perhaps, all political systems around the world as well) to respond adequately and begin engaging in the changes that are necessary.

Posted 10:08 PM by Sandy Levinson [link]

Comments:

They say you catch more flies with honey than with vinegar.

# posted by

Unknown : 2:05 AM

"But it really does rankle to watch one's erstwhile political allies ... simply maintain a truly willful ignorance to the possibility that our Constitution is at least as much the problem as the solution to the ills they all identify."

Don't we need this discourse to spread the message, to get more of "We the People" involved? Consider how long it took the abolitionists to try to make their case, and then it took the Civil War (plus many, many decades since). There have been many long battles since the Constitution and the Bill of Rights for what some, perhaps many, would today call "natural rights" that many had been deprived of over the course of a couple of hundred years. I think of Horwitz' "Transformations ...." I was impressed by Dahl's book several years ago. (I haven't read yours.) He made the case for me but there has been no momentum to stir "We the People." So more discourse is necessary before "We the People" will call for a convention.

Sandy, I hear you. I hope to keep hearing from you - and others - to make the case as well as to hear the challengers. Consider how long it has taken the sciences (and the law is far from a science) to come to a strong consensus on global warming and yet very little is being done. The drumbeat must continue and get stronger. I don't think "We the People" are close to a consensus on what needs to be done with the Constitution. In my view a convention today would challenge a tower of Babel in contentiousness what with all the shades of originalism and living constitutionalism out there talking past each other.

By the way, "We the People" are not flies, so more vinegar, please, for what may be our salad days.

# posted by

Shag from Brookline : 6:25 AM

This comment has been removed by the author.

# posted by

Tantallonblog : 6:37 AM

Our defective [...] constitution[alist]s?

# posted by

Tantallonblog : 6:39 AM

"This repression of any radical thought is one of the reasons I have come truly to despise Article V, "

Yeah, it's a real pain, having to actually persuade the public that you're right, having to produce a consensus for change before going ahead with it. And having to formally describe the change you want makes achieving consensus even harder, because it rules out all that hand waving.

It has been the experience of the world that radical change is usually radically bad. And people who, after the 20th century, are capable of using the name "Marx" as anything but an epithet scare the piss out of me.

# posted by

Brett : 6:47 AM

And people who, after the 20th century, are capable of using the name "Marx" as anything but an epithet scare the piss out of me.

The guy's name is Larry Marx. I think he can use it without sending you into paroxysms of fear.

And Karl himself is quite safe to read. I recommend The Critique of Political Economy and The Economic & Philosophic Manuscripts of 1844. Shlomo Avineri's book, Karl Marx: Social and Political Thought is a great discussion of the early Marx.

Yeah, it's a real pain, having to actually persuade the public that you're right, having to produce a consensus for change before going ahead with it.

We can persuade the public any time. That's what we do for elections. Art. V requires persuading an arbitrary and undemocratic slice of "the public".

# posted by

Mark Field : 10:51 AM

I think he can use it without sending you into paroxysms of fear.

Apparently not!

# posted by

PMS_CC : 11:15 AM

And having to formally describe the change you want makes achieving consensus even harder, because it rules out all that hand waving.

Someday you will come to terms with the amount of hand-waving that already exists in the Constitution as written. I mean, imagine if someone submitted the General Welfare Clause to you for approval. Or even better, the Ninth Amendment. You'd be like, come on, this is vague claptrap that doesn't actually mean anything. But notwithstanding your claim that a formal process would surely preclude any sort of hand-waving, all that vague language was most certainly ratified!

On the other hand, if you spell everything out so people know exactly what it is they're voting for, you end up with a debacle like the EU constitution that was rejected a few years back. In order to achieve a supermajority, sometimes you need to use language that can mean "all things to all people" and rely on history to define it for you later. The Founders clearly understood this concept and it remains true today, like it or not.

Also, that Marx thing? Too precious for words.

# posted by

Steve M : 11:28 AM

sandy:

1. bill hogeland can take care of himself: I suspect that he will agree about the interest and importance of the work you mention (yours, Dahl's etc.), but wonder how much it has helped to shape the Constitution Center, which is his topic. I imagine that he will also forgive you for misspelling his name.

2. I am not sure what disappoints you about the neglect of your book in an essay devoted to the Constitution Center and the intellectual influences that helped to shape it. Maybe I am just being editorially defensive, but....

3. As to our being a forum, Boston Review often (as you know) runs fora in the magazine; we do publish letters sometimes (VERY tough given the publication schedule and a variety of other factors); most of our readers are online, and we get lots of comments on some of our articles; and we do publish online exclusives. Speaking of which: we would LOVE to have you write something that we would post online, as a mix of criticism of Hogeland and sketch of the democratic reform views that you have defended.

Josh Cohen
jcohen57@stanford.edu

# posted by

Josh : 2:31 PM

Sandy:

I have not (yet) read your book. So many books; so little time.

There is an obvious progressive objection to the idea of reopening the Constitution, namely: Be careful what you wish for.

Yes, the constitution does indeed have anti-democratic provisions, but it also has powerful protection of speech, the establishment clause, limits on executive power (see Hamden v. Rumsfeld), and provisions that have been construed to grant a right of privacy that has been used to protect reproductive rights and gay rights. I mention these in particular because I fear all would be subject to limitation were the constitution to be generally reopened.

Just look at what happened in California this past November during what otherwise was a progressive sweep.

I assume you address this objection in your book, and I apologize for using the blogger's privilege of commenting on what one hasn't read, but I don't see any way to avoid there being more to lose than to gain in reopening the constitution.

As this is my first post on Balkinization, hello to you and to Jack -- two old friends.

# posted by

Paul Sleven : 9:08 PM

It is natural in our constitutional form of government, however inadequate it may be, for citizens to question the government. Indeed, it is their responsibility.

What concerns me, as has been alluded to by others in these comments in the lack of understanding and faith in our Constitution which used to exist in our country. We have, for lack of a better term, lost faith in ourselves. For in the ultimate end, we the people are the Constitution and the Constitution is we the people.

We read constantly about the complaints people have about what needs to be changed in our country. Go to any political blog and in one form or another, you will hear the same thing over and over: we need changes in the country and we need fundamental changes.

Article V is a tool that allows us to do these changes. But, because of a small minority of extremist, the one tool that could bring about the changes, has been tarnished.

I belong to a non-partisan group, FOAVC, Friends of the Article V Convention that is trying to change that. I invite all who read this blog to come to our site, www.foavc.org and learn about an Article V Convention.

FOAVC is the only site where you can read the over 650 applications from all 50 states, well in excess of the 34 applications required to compel Congress to call an Article V Convention.

Please consider coming to our site and learning about this important constitutional tool left to us by the Founders. Thank you.

# posted by

Bill Walker : 9:18 PM