Balkinization  

Sunday, May 31, 2009

The limits of "democratic constitutionalism" with an undemocratic Constitution

Sandy Levinson

The collection of essays that Jack and Reva have edited is, as one would expect, very good and highly worth reading. Why, though, am I less enthusiastic about the overall project, as described by Jack, than presumably typical members of the American Constitution Society (an organization that I support wholeheartedly)? The answer, as will surprise no one, is simple (and, some of you no doubt think, simplistic): Most of the issues that challenge us as a nation today have remarkably little to do with standard-form issues of "constitutional interpretation"; they are, therefore, not really amenable to litigation, including the most brilliant arguments made before our favorite justices or, for that matter, our favorite members of Congress or presidents.

It has become glaringly obvious, for example, that if one wants to understand why California has become, in the words of the Economist, "The Ungovernable State," May 16-22, 2009, p. 33, the answer has almost literally nothing to do with decisions by the California Supreme Court, including its decisions on Proposition 8. Rather, it has to do with basic structures of the California constitution, plus, of course, the character of the California party system and the sheer heterogeneity of the state. I, of course, believe the same is true at the national level. If we don't get significant medical care reform of a handle on the military budget, it will because of an indefensible Constitution that gives people like Max Baucus from Montana and Daniel Inouye from Hawaii totally unmerited power in the Senate, not to mention the other pathologies of the Constitution.

Unfortunately, self-styled "progressives" and devotees of "democratic constitutionialism," including some of my very best friends, seem unwilling to emulate the earlier generation of progressives, who challenged various parts of the Constitution and even brought about important changes (e.g., the 16-19th Amendments). Instead, we continue to believe that it our challenge is figuring out the one true way to interpret the Constitution and then hope that the "dialogue" among social movements, members of Congress, and the courts will work out for the best. I hope they're correct, but I don't share their implicit optimism about what is possible within unreformed political institutions. "Dialogue" sure as hell isn't working in California. At least in California, the situation has become sufficiently catastrophic that serious people are talking about a constitutional convention and serious change.

What will it take for even one "respectable" person--I take it that Larry Sabato and I are viewed simply as academic flakes--to suggest that we might at least initiate such a conversation before catastrophe occurs instead of waiting, in Bruce Ackerman's term, for "the next attack," whether that "attack" is standard-form terrorism, a further financial meltdown, or a drastic public health emergency (not to mention the general issue of global warming and the inundation of coastal America)?

Comments:

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"... seem unwilling to emulate the earlier generation of progressives, who challenged various parts of the Constitution and even brought about important changes (e.g., the 16-19th Amendments). Instead, we continue to believe that it our challenge is figuring out the one true way to interpret the Constitution..."Well, duh. There's a fundamental tension here: "Informal" amendment is only justified on the basis that formal amendment is just too damn difficult to be a realistic option. If formal amendment via Article V is a real option, you just can't justify 'interpreting' the Constitution to change it.

But, if you go for the formal amendment, it undercuts the argument for the legitimacy of all the informal amendments, by establishing that you don't really think formal amendment is impossibly difficult. And implicitly confirm the complaints of the opposition that you didn't do it because it's the only way the Constitution can change to meet changing circumstances, but instead only to avoid the possibility that the amendments would be rejected by the states.

And so, it's perfectly natural that advocates of informal change would be highly reluctant to attempt actual amendment. If the latter is possible, the former is illegitimate!
 

While I may agree with Sandy's deep concerns, I have deeper concerns whether a constitutional convention would resolve them. Consider the first constitutional convention, including its representatives. With a US population of over 300 million, who would be the delegates? How long would the convention take? What would be the public inputs, the public interests? And might we end up with a code? And how long thereafter might there be a realization that even with the benefit of 200+ years of hindsight, we might get it wrong? Some problems don't have solutions readily at hand.

I'd like to see what a proposal for such a convention would look like, with details to address some of the above questions. (There are, of course, many more questions to be addressed preliminarily.) Then the different interests could critique the proposal, modify it, whatever. And what might be the time frame - over how many presidential and congressional elections?
 

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Brett's response undercuts itself. The reason Prof. Levinson and others advocate more fundamental changes is precisely because they recognize that some Constitutional flaws are so plainly worded that no other solution is possible.
 

I'm just explaining to Sandy why some of his compatriots are unwilling to go the amendment route: It would tend, at least, to delegitimize non-amendment 'changes' to the Constitution which they want to be seen as legit.

I suppose you could advance the argument that some non Article V changes are ok, and some changes require Article V, but not everybody is going to be comfortable with that much nuance.
 

Shag from Brookline:

With a US population of over 300 million, who would be the delegates? How long would the convention take? What would be the public inputs, the public interests?

Indeed. Consider California, where the voter initiative was supposed to allow the people to ride herd on a non-responsive elected gummint, but where in fact, the initiative process has become the tool of big-money interests (of various types) looking to sucker the few voters that vote in the special elections that are preferred for such with cleverly worded propositions that hide the true intent behind them (and/or beneficiaries).

I can just see a lot of Big Money from special interests turning a constitutional convention into something resembling the sacking of Rome. The recent plunder of the "bailout" funds (and the less recent plunder of Iraqi "reconstruction" funds) does nothing to ease my mind that such a process would redound to the actual benefit of the country.

Cheers,
 

I was curious why Professor Levinson did not make a contribution to this edited volume. Now I think I know.
 

I'm just explaining to Sandy why some of his compatriots are unwilling to go the amendment route: It would tend, at least, to delegitimize non-amendment 'changes' to the Constitution which they want to be seen as legit.

But you haven't done this. Some parts of the Constitution are written in general terms ("cruel and unusual"), some are not ("35 years of age"). Recognizing the need for a convention to deal with what Prof. Levinson calls the "hardwired" provisions is in no way inconsistent with recognizing that other clauses can be interpreted in different ways.
 

"Some parts of the Constitution are written in general terms ("cruel and unusual"), some are not ("35 years of age")."And the informal 'amendments' are not even remotely limited to the former.
 

I agree with Mark Field's response to Brett. Make two lists, one containing the Constitutional provisions that Prof. Levinson wants to address, the other containing provisions subject to amendment by (re)interpretation. I think you will find relatively little overlap.
 

Some people go to priests, others to poetry, I to my friends.
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It' not as scary as some people, who always ask everyone to change but themselves... and they don't know how to change when asked gmail account login thank you! you opinion is really helpful or me.
 

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