Is the Constitution simply irrelevant?

Sandy Levinson

Paul Krugman ends his column on the disgraceful surrender (also called the "Grand Bargain") as follows:

In the long run, however, Democrats won’t be the only losers. What Republicans have just gotten away with calls our whole system of government into question. After all, how can American democracy work if whichever party is most prepared to be ruthless, to threaten the nation’s economic security, gets to dictate policy? And the answer is, maybe it can’t.

He is, I think, absolutely correct. What we have witnessed is a perverse kind of Schmittian moment, in which political thuggery has prevailed. But the thuggery has not involved any illegal conduct. Rather, it required "only" that the House Republicans take advantage of the rules of American bicameralism and that the Senate continue to operate under the practice of the filibuster. Ironically, the craven President of the United States was so insistent on not even appearing to be thinking of acting like a Schmittian sovereign--even though the 14th Amendment provided a tenable, even if not a "winning" argument before somebody left unspecified--that he saw no alternative to capitulation, which he will no doubt present as a version of "peace in our time." [UPDATE: I WROTE THIS MUCH TOO HASTILY: I HAVE COME TO BELIEVE, THANKS TO THE ARGUMENTS OF LARRY TRIBE AND OTHERS, THT THE SO-CALLED "14TH AMENDMENT OPTION" HAD FATAL LEGAL AND POLITICAL WEAKNESSES. IRONICALLY ENOUGH, THOUGH, OBAMA WOULD APPARENTLY HAVE NOT HAVE LEGALLY TRANSGRESSED HAD HE ORDERED THE ISSUANCE OF TWO PLATINUM TRILLION COINS, HOWEVER "AUDACIOUS" THAT WOULD HAVE APPEARED. THAT'S WHAT SOMEONE PLAYING CONSTITUTIONAL HARDBALL WOULD HAVE DONE.]

My friend and former colleague, Brian Leiter, posted the following comment to my earlier post on Stanley Greenberg's essay in the NYTimes:

1. You have correctly pointed out the deficiencies of the U.S. Constitution, but you can't seriously believe that the reason the U.S. is a reactionary and dysfunctional plutocracy is because of the particular Constitution adopted in 1789.

2. Do you seriously think a Constitutional Convention in the era of Fox News and other crypto-fascist media would yield anything other than a horror? This defies belief.

You're stuck in an Idee Fixe at this point, and it's making your commentary increasingly irrelevant. The Constitution is epiphenomenal at this point.

I don't rule out the possibility that Brian is right. I have become something of a crank, and perhaps the Constitution is "epiphenomenal." That's a debate very much worth having. I do not think that the Constitution is the explanatory be-all and end-all. But does it really explain nothing about our polity? What if, for example, the President had the power granted by the French Constitution to dissolve the legislature and call for new elections? Is there any reason in the world to believe that the Republicans would prevail, given that the 2010 victory was achieved by the massive falloff in turnout by Democrats from 2008? Indeed, perhaps we should even take seriously the premise that Obama might have behaved differently if he had been convinced, perhaps while teaching at the University of Chicago, that the President had the power to stand firm against the political thuggery of the Republicans by declaring that the debt limit is unconstitutional and he has the power simply to ignore it. [SEE ABOVE UPDATE/]

Does Brian believe that orthodox Marxism explains our present situation? Would smart capitalists really want a deal that almost certainly guarantees a return to recession, if not depression? Or is the point that capitalists are like Kansas;they really doesn't know their own class interests, so fixated have they become on Grover Norquist's no new taxes? (I don't rule that out, but it certainly doesn't speak well for their analytic powers, given that no sane person can believe that massive cutbacks on government spending will lead to new jobs, in part because there are ever fewer people with disposable income to return to our old consumer-goods based society. Indeed, it is amusing, in some sense, to watch Kay Bailey Hutchinson moan about cutbacks in NASA and the havoc that may cause the Houston economy. And so on.)

I'm more than happy to join Brian in describing Fox News as crypto-fascist. But what is the relevance with regard to debating the proposals that Tea Partiers are making with regard to constitutional amendments? Should we be debating the proposals on their merits (which I think are few) or should we simply be saying that the Constitution is irrelevant, so that it really doesn't matter at all what the Constitution says? I don't mean this as a rhetorical question. I really do want to know what Brian thinks the American left should be saying or doing in response to the despair well articulated by Paul Krugman.

UPDATE: Matt Miller has an interesting column in the Washington Post castigating the agreement for its utter failure to confront the present jobs problem or the long-run problems of an aging population that will make ever greater demands on the medical insurance and social security systems (not to mention the discussion that will have to take place about whether we can any longer afford to pretend to the be "New Rome." For better or, I think, worse, he concludes by endorsing Americans Elect and the prospect of a third party. Or is the Constitution merely epiphenomenal with regard to the lunatic way we conduct presidential elections in the United States?
Posted 12:07 AM by Sandy Levinson [link]