an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Last week I attended a splendid conference organized by Sandy Levinson and held at the University of Texas. The conference was entitled, Is America Governable? As the name implies, the conference was devoted to a diagnosis of and proposed solutions to our current political difficulties.
The conference organizer, Sandy Levinson, has long taken the position that a major source of our current problems is the Constitution itself, and especially the hard-wired parts of it that can only be changed with a constitutional amendment. That is why he has called for a new constitutional convention.
The participants in the conference had many complaints about our current system of governance. Nevertheless, relatively few of these complaints had to do with the hard-wired Constitution.
For example, several participants noted that many of our current problems are due to political polarization that leads to political gridlock. But today's political polarization is not due to the Constitution's hard-wired rules. It is probably due more to (1) lack of open primaries that give greater incentives to electing moderate candidates; (2) the choice to have single member electoral districts; (3) partisan gerrymandering; (4) a powerful and revolutionary social movement on the right; and (5) our current system of campaign finance. When one adds (6) the Senate's filibuster and hold rules, it is difficult to get things done at the federal level. (Moreover, at the conference political scientist John Dinan pointed out that, at the state level, polarization has not caused the same degree of gridlock, in part because many states lack the same filibuster rules and because at the state level it is more common for one party to control both the legislature and the governor's office).
Sandy has famously distinguished between the the Constitution of Conversation-- those parts of the Constitution that most law professors talk about, because they are the frequent subject of constitutional litigation, and the Constitution of Settlement-- those parts of the Constitution that are almost never litigated.
Many of the causes of our current political polarization and dysfunction fall within the Constitution of Settlement. But the important point is that the Constitution of Settlement is not the same as the hard-wired features of the Constitution that cannot be changed without Article V Amendment. Many parts of the Constitution of Settlement can be changed without a constitutional amendment, much less a new constitutional convention.
One could move to (some kinds of) open primaries or return to state nominating conventions without altering the Constitution. Similarly, without Article V amendment, one could move to multi-member districts and reform gerrymandering practices.
The Senate's filibuster and hold rules can be changed by a simple majority, or by the threat of using a simple majority in order to obtain 67 votes for more moderate measures. The obstacle to filibuster reform, it turns out, has been Democratic Senators like Senate Majority Leader Harry Reid, who ultimately decided that he did not want to change the 60 vote rule-- a major cause of political dysfunction--and settled instead for a limited set of reforms. One may certainly blame Harry Reid and Senate Minority Leader Mitch McConnell for our current gridlock, but one shouldn't blame the hard-wired Constitution.
Several participants at the conference argued that the rise of very strong, highly ideological, and intransigent movements on the right, which have effectively taken over the Republican Party, have been a key source of political dysfunction. Whether or not that assessment is correct, it has little to do with the hard-wired Constitution. Contemporary conservative movements may seem immensely powerful and completely intransigent to most liberals. But things will not stay the same forever. Political movements rise and fall, radicalize and moderate. The conservative movement has been going strong since the 1970s but it is now undergoing a significant process of change. It may be transformed as the result of presidential elections like the last one. Republicans are already rethinking their message and their tactics in light of the 2012 election. One cannot know precisely what the conservative movement will become, or exactly how the Republican Party will change in order to become more politically competitive at the presidential level. But both the movement and the party will change, and all of this will occur without the need for a constitutional amendment.
It is true that some campaign finance measures (and some blanket primaries) are blocked by current Supreme Court precedents. But not all reforms are made impossible; moreover, the most effective way to change individual constitutional doctrines is not Article V amendment. It is new appointments to the federal judiciary. That is why the conservative movement has, completely correctly, been so concerned with placing conservatives on the federal bench and fighting the appointment of liberals. And, not surprisingly, much constitutional doctrine has changed in the past 30 years as a result of conservative judicial appointments. A change of one vote on the Supreme Court would transform campaign finance law (and other things besides).
Finally, it occurred to me, as I was listening to the various participants, that we may be confusing political dysfunction with political transition. I am increasingly convinced that the 2012 election was a watershed event. The Reagan regime now seems to be over. A new political regime has begun.
During periods of transition things often seem entirely hopeless. For example, in the last years of the New Deal/Civil Rights regime in the late 1970s, government seemed completely dysfunctional, and many commentators argued that the Presidency was too big for any one person. But by the middle of the 1980s, nobody thought that anymore. The reason is that Jimmy Carter was the last president in an old political regime, dominated by the Democratic Party, that could no longer keep itself together. The next president, Ronald Reagan, was a transformative president who began a new political regime that would dominate politics for the next thirty years.
It is my belief that George W. Bush was, like Carter, a disjunctive president who presided over the dissolution of the political regime with which he was affiliated. The new, emerging regime will be dominated by the Democrats. It may not be liberal in precisely the same way as the New Deal/Civil Rights regime was, but it will be more liberal than the current Republican Party, which, like the Democratic Party of the late 1970s, is increasingly unable to hold itself together and to govern effectively.
If we are in a period of political transition, it is no wonder that things seem difficult. And that may be why, at this particular period of time, people are casting about for solutions to dysfunction, and calling for constitutional amendments. But within five years or so, all that will change, and it will change without the need for new constitutional amendments, much less a new constitutional convention. To be sure, I do not oppose the idea of new constitutional amendments; I simply think that the current dissatisfaction and urge for profound change is symptomatic of something else.
The most interesting conclusion that I took from the conference, then, is that the diagnosis of dysfunction may be a misdiagnosis. Our constitutional system may not be unworkable. America may not be ungovernable. Rather, we are in the middle of a transition from an older, exhausted political regime to a new one. That transition may be difficult, but it will also be temporary.