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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Read me whine
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Monday, December 29, 2008
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.
Comments:
"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.
"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.
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".
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.
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
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.
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.
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Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). 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