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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Jon Roland, a dedicated libertarian who runs Constitution.org and has placed many important documents of American constitutional history on the Internet, taped all of the sessions at the conference held last week at the University of Texas Law School last week and has been kind enough to make them available to one and all. I am grateful to him for his generosity. You can find each of the eight sessions, seven panels and Larry Lessig's Friday luncheon talk below. With some trepidation, I am opening this for discussion, the trepidation coming primarily from the fact that the topics of the panels were certainly far ranging and it will be more difficult than usual to have a truly coherent discussion. Still, I hope that those of you who have the patience to work through any or all the sessions find them as interesting as they were for the participants and live audience.
If you watch nothing else, you should look at the Larry Lessig's talk at least long enough to see the astonishing card passed out to all newly-elected Democratic members of Congress relating to how they should spend their days.
Session 1 of the conference, Is America Governable? U. Texas School of Law, Jan.24, 2013. Panelists: Mickey Edwards, Bill Galston, Sandy Levinson, Tom Mann, Norman Ornstein, Alan Wolfe. Moderator: Evan Smith.
When you visit the YouTube videos please click on "Life" so they will be promoted to a wider audience.
Note the spelling of my first name is "Jon" and constitution.org is the website of an organization with many members.
In future conferences participants who present powerpoints should be encouraged to use larger font sizes so that they can be read from across a large room and by someone viewing a video recording of them.
The participants were Sandy's friends and mostly progressive, like most academics, but Mickey Edwards labels himself as "libertarian" and Larry Lessig as a "recovering Republican". No conservatives in sight. But some of the audience questioners, like me, brought a libertarian perspective.
Of course if you really wanted a deep analysis of the conference question the participants would need to all be libertarian.
For what it's worth, very few people at the conference agreed with "my politics," which involve, as readers well know, a critique of the Constitution and a call for a new constitutional convention to reform it. (Only Larry Lessig, among the participants, supports a new convention.) It's true that everyone at the gathering, including, quite suprisingly, David Mayhew, who in his scholarship up to now has been, from my perspective, altoether complacent, agreed that something has gone amiss. But this is to say that they agree with the overwhelming number of Americans that the American political system is "dysfunctional." The conference very explicitly did NOT get into the particular issues of the moment, and I have gone out of my way to emphasize that the right, including libertarians like Jon Roland, seems scarcely more enamored of the current state of American politics, relative to their ability actually to make changes they think vitally necessary, than those along other places in the spectrum. I'd be interested in "nominations" of participants who would have argued some version of "don't worry, be happy, everything is fine in the good old US of A's political system."
Mickey Edwards, in particular (though he was not alone) attacked Mann and Ornstein for putting too much blame on the Republican Party. (I agree with Mann and Ornstein.) But I'm not sure how one determines the political tilt, say, of the panel on the judiciary or even on how to conduct elections, unless one is overtly willing to defend the desirability of suppressing the vote.
There seemed to be general agreement among the participants that we and governance are in trouble, although not necessarily whether that is a question of the governability of the country (or the world), or the causes or remedies for it.
It is convenient to blame partisanship, the drive to defeat the other party, as the main factor, but that ignores the very real differences in understanding of our situation. The sides disagree less about which alternative futures are preferable than about which are actually attainable.
Progressive democrats, if they even recognize that a debt bubble exists, perceive it at only a minor threat, and at least 20 years in the future. That leads them to think we can tax, spend, and grow our way out of it.
Fiscally conservative republicans see the debt bubble as much more of a threat of another great depression, but try to convince themselves the collapse is at least 10 years off and that we can cut and grow our way out of it.
This analyst sees economic collapse from the debt bubble as unavoidable no matter what we do, and that we missed the only chance we had to avoid it more than 30 years ago. We are like Wiley Coyote who has just run off the edge of a cliff and hangs in mid-air because he doesn't know it yet.
What we need to be doing now is preparing ourselves to survive the crash and recover from it. The crash doesn't have to bring the end of civilization, but it could if we don't do what we can to ameliorate the worst effects.
My next comment is the text of a handout I sent to participants and passed out to attendees.
I think folks along the ideological spectrum from progressivism/socialism to libertarianism can now at least sense the disfunction of our government.
I have come to agree with Sandy that we need a fundamental rewrite of the Constitution to address this disfunction.
Where I disagree with Sandy is that he blames the Constitution's remaining checks and balances against the progressivism/socialism he prefers, while I long ago concluded that progressivism/socialism is unsustainable and problem is that the Constitution allows progressivism/socialism at all.