Shared Sacrifice of Whom?

Frank Pasquale

As Drew Westen observes today, "400 people control more of the wealth than 150 million of their fellow Americans," and "the average middle-class family has seen its income stagnate over the last 30 years while the richest 1 percent has seen its income rise astronomically." These extremes cry out for a theodicy, justifying mammon's ways to man. As wealth gets more concentrated, here is one of the millions of "faces of austerity" whom policymakers must answer to:

Cynde Soto dreads the arrival of yet another benefit notice. Her cash assistance has been cut four times in two years. State medical coverage is getting more expensive and no longer includes dental care or podiatry. And the in-home help she needs to take care of basics has been cut by about 20 minutes a day. "That doesn't sound like a lot to people but ... I'm a quadriplegic," said the 54-year-old Long Beach resident. "I can't even scratch my own nose."

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Posted 7:23 PM by Frank Pasquale [link]

The Roberts Court and the State Courts: 2010 Term

Jason Mazzone

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Posted 4:12 PM by Jason Mazzone [link]

Standard & Poor’s Downgrade of the USA: Defense Spending, Insider Trading, and the Myth of Unregulated Markets

Bernard E. Harcourt

Posted 12:32 PM by Bernard E. Harcourt [link] (90) comments

Winters on Oligarchy

Andrew Koppelman

Jeffrey Winters’s new book, Oligarchy, is a brilliant comparative study of the role of wealthy elites in politics. He argues that the protection of wealth is a central theme in politics throughout history. He draws on an enormous range of illustrations, from ancient Greece and Rome to medieval city-states to contemporary Indonesia and the Philippines. He also shows its influence in the contemporary United States, in a way that is remarkably timely.

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Posted 4:50 PM by Andrew Koppelman [link]

Constitutional Redemption Online Symposium

JB

Over at Concurring Opinions, Danielle Citron has organized a blog symposium on my recent book, Constitutional Redemption: Political Faith in an Unjust World.

There are lots of new ideas offered in the symposium, including Joey Fishkin's introduction of the striking idea of "constitutional televangelism." What's that, you say? Go read the symposium and find out.
Posted 9:04 AM by JB [link]

The Legislation

Marty Lederman

Rarely has so much been written and discussed about a document that so few people have actually seen or read.

Here it is.

I've barely started reading through it; a great deal of it is difficult to parse without a deep understanding of the underlying statutes being amended, and many fairly obscure terms of art. I'm curious whether it raises any serious constitutional problems (something to which OLC is no doubt currently devoting countless hours). I'm opening comments here, with some trepidation. Please limit comments to identifying possible constitutional issues -- there are thousands of other fora more appropriate for debating the wisdom and politics of the legislation. Thanks
Posted 12:39 PM by Marty Lederman [link] (9) comments

Regime change: Delegation run riot

Sandy Levinson

I'm off to Argentina this afternoon, so I won't be posting for the next two weeks. (No great loss.) But I do want to offer one final comment on the Grand Bargain that was just inflicted on it. Put to one side that it represents, as Joe Nocera aptly argues in today's NYTimes, the submission basically to terrorist threats by a remarkably feckless President. And put to one side that it almost guarantees the worsening of the American (and therefore the world) economy, though it may brighten the prospects of a Republican victory over the feckless President, apparently the only thing that Mitch McConnell is really committed to as he winds up his long and decidedly non-illustrious career in the Senate.

Rather, I want to elaborate the theme of several earlier posts, which is the way that changes in the American political regime occur. From one perspective, of course, the House Republicans behaved no worse than did earlier Republicans, in 1865, who refused to seat the elected Senators and Representatives from the defeated so-called Confederate States, whose governments had been accepted by President Andrew Johnson and whose votes to ratify the Thirteenth Amendment were accepted by Congress. I.e., each band of Republicans took advantage of the legal possibilities open to them and played a decided form of "constitutional hardball." And, of course, full representation of the defeated Southern entities (or whatever you wish to call them) was made contingent on their ratifying the Fourteenth Amendment. If one defends the earlier group of Republicans, as I most certainly do--including the impeachment of the egregious Andrew Johnson--it is on the basis of agreement with their political agenda, which was regime change in the defeated Confederacy. They failed, of course, and the Compromise of 1877 returned the defeated Confederacy to the white ruling class for another 100 years. (Something that should be taken into account by those who are trumpeting the overriding virtue of "compromise" in all cases. There are times when lines should be drawn in the sand.)

So if one wants to denounce the House Republicans today as terrorist thugs, it can only be because on disagrees with their political agenda, as I do. If one shares their agenda, and their sense of concern about the "debt crisis," then they behaved perfectly properly. In any event, one can assume that we will see in the future ever more taking advantage of any and all legal possibilities to get one's way, including the de facto holding America hostage in order to get one's way.

But even more telling with regard to regime change is the further diminution of Conress as a serious law-making or deliberative body. (Nothing new here; Carl Schmitt would certainly understand how and why that has happened.) We are to be effectively governed in the next several months by the new super-duper committee of six Republicans and six Democrats who will be able to propose fast-track budget cuts (or, in theory but not in fact, tax increases) that Congress must vote up or down on, with no possibility for amendment. Lest one compare this to other fast-track procedures, such as the base-closing commissions and the like, note that the failure of Congress to acquiesce to the wishes of their new masters will lead to killing the hostages, in this case automatic budget cuts in defense and in programs involvng the vulnerable.
As I wrote yesterday, this literally makes no sense IF one believes that our current defense budget makes sense (and, of course, if one is a bleeding heart who believes that the suffering should receive help instead of being left to their own prospects in a Darwinian free market). This is not the way a serious Republican Form of Government operates. It is the way a "constitutional dictatorship" takes further (and suitably complext) form. In any event, political terrorism will have been "normalized."

In this context, I'm happy to echo the words of a Texas Republican Representatives, Michael C. Burgess: "I hate it, I hate it, I hate it with a passion.” This comes, suitably enough, from a story in today's Times on how "Lawmakers in Both Parties Fear that New Budget Panel Will Erode Authority." Yes, indeed. It represents a new version of "delegation run riot," though this time the delegation is not to the Executive Branch, but, rather, to an insider's club of less than 5% of the entire Congress, whose members will be appointed by the Speaker, the House Minority leader (Nancy Pelosi), and the Senate majority and minority leaders, with, one presumes, no formal approval by the House or Senate itself. Why would anyone who has any lingering belief in democracy, representative government, or a Republican Form of Government believe this is a good idea?
Posted 11:21 AM by Sandy Levinson [link] (8) comments

George Washington on the Debt Ceiling Crisis

Jason Mazzone

On the first day of June last, an instalment of one million of florins became payable on the loans of the United States in Holland. This was adjusted by a prolongation of the period of reimbursement, in nature of a new loan, at an interest at five per cent for the term of ten years; and the expences of this operation were a commission of three per cent.

The first instalment of the loan of two millions of dollars from the Bank of the United States, has been paid, as was directed by Law. For the second, it is necessary, that provision should be made.

No pecuniary consideration is more urgent, than the regular redemption and discharge of the public debt: on none can delay be more injurious, or an economy of time more valuable.

The productiveness of the public revenues hitherto, has continued to equal the anticipations which were formed of it; but it is not expected to prove commensurate with all the objects, which have been suggested. Some auxiliary provisions will, therefore, it is presumed, be requisite; and it is hoped that these may be made, consistently with a due regard to the convenience of our Citizens, who cannot but be sensible of the true wisdom of encountering a small present addition to their contributions, to obviate a future accumulation of burthens.

Posted 12:51 PM by Jason Mazzone [link] (7) comments

More on a constitutional convention

Sandy Levinson

My friend Earl Maltz was kind enough to send me the following comment on my previous post, and he has given permission for me to make it public:

I agree that our Constitution (genuflecting toward Philadelphia) is fatally flawed. Leaving issues of democracy aside (I really don't care about them), the current structure is simply dysfunctional. Unfortunately, it is going to be impossible to make really significant change through the convention route. The problem is not Fox News, but rather that the country is now too large and too diverse to get the kind of consensus that you need to make major constitutional changes. So what you are going to get is a counterproductive circus that will do nothing but divert us from practical measures that might at least make small but significant advances in dealing with the problem.

In particular, I think that a real, concerted effort should be made to organize an assault on the filibuster rule. Getting rid of the supermajority requirement in the Senate would at least be a start and might be doable in the forseeable future (the beginning of the Obama administration would have been the ideal time, but that would have required actual leadership instead of grandstanding on a train and pretending to be Lincoln).

I think this is an eminently reasonable position. We should confront the possibility that Madison was simply wrong in the 14th Federalist if he was arguing that a "republican form of government" could be indefinitely extended. Of course, he literally had no conception of how large and heavily populated the US would ultimately become. He was simply suggesting that a country of 4 million people (where most of them were excluded from political participation) could govern itself in a "republican" mode, which for Madison meant rule by benevolent elites committed to the "public interset" and relatively insulated from political "factions." That's not the country we live in (and hasn't been at least since the time of Andrew Jackson).

I predict, incidentally, that if the Republicans do take control of the Senate and Obama wins re-election, that their first order of business will be to eliminate the filibuster. They are serious about imposing their own agenda--whether or not one calls it "governing" or not--in a way that Senate Democrats are not (perhaps because they don't have a firm idea of what they actually want to do and how they would finance it, given that taxing the rich, though necessary, is scarcely sufficient to finance the welfare needs of an American population that is getting over older).
Posted 11:55 AM by Sandy Levinson [link] (84) comments

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] (39) comments