Balkinization: The United States Constitution is Not Dysfunctional

The United States Constitution is Not Dysfunctional

Guest Blogger

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

Steven G. Calabresi

May 12, 2019

Providence, Rhode Island

Dear Jack and Sandy:

Thank you enormously for inviting me to comment on your new book. While I believe the U.S. constitutional system is badly in need of some reforms, I think the U.S. Constitution, as amended, is the best such document in any of the G-20 constitutional democracies today, and I think you both seriously underestimate its comparative virtues.

I not only disagree that the U.S. system is dysfunctional, but I also think it is a splendid success that should be widely copied.

I shall comment respectively on: 1) the world scene today; 2) the undeniable success story of the U.S. Constitution; 3) the reasons why I do not agree with you that the Constitution is dysfunctional; and 4) some reforms, which would make the Constitution work better.

I. The World Scene in 2019

I must begin by stating a preference for the most populous and territorially large democratically self-governing polities possible.

I would eventually like to see the emergence of a weak global federal democracy of the G-20 constitutional democracies i.e.: 1) the United States; 2) the United Kingdom; 3) France; 4) Germany; 5) Japan; 6) Italy; 7) India; 8) Canada; 9) Australia; 10) South Korea; 11) Brazil; 12) South Africa; 13) Indonesia; 14) Mexico; and 15) the European Union.

I believe populous and territorially large democracies will accomplish four goals:

First, they will reap huge economies of scale in running: 1) an international Space Station and Lunar and Mars exploration function; 2) they will reap huge economies of scale in running an international ballistic missile defense against militant oligarchies like China and Russia and an effective regime for ending terrorism from the Middle East; and 3) they will reap huge economies of scale in setting up airports, highways, internet systems and other great public works and in facilitating global commerce.

Second, I believe a G-15 federal government could redistribute wealth globally whereas the current system lead to races to the bottom and to a host of collective action problems in dealing with races to the bottom in redistributing wealth; and races to the bottom in overfishing of the seas; in energy production; and collective action problems hindering the development of missiles to destroy dangerous asteroids, which might collide with our planet.

Third, I believe a G-15 federal government could address problems like Global Warming; air and water pollution and trash in space in low earth space orbit. Nations today generate negative externalities for one another in the form of excess carbon dioxide production, which a global federation might stop.

Fourth, I believe a G-15 federal government would be more protective of individual human rights than are the current separate nation states essentially for the reasons James Madison expounds in Federalist 10. Expand the polity; and you increase the number of small interest groups. As you do so, they likelihood that one interest group will ride roughshod over the others goes way down.

Of course, there are powerful reasons to keep a Global G-20 Democratic Government federal and limited in powers. First, the fifteen nation states have different cultures, traditions, tastes preferences, and they face different unique problems. Second, one might want the 15 nation states in a United States of the world competing with one another by experimenting with different economic, social, and cultural policies for the allegiance of citizens and businesses. Third, it is easier and less costly for voters to monitor nation state governments than a Global Federal Government. For this reason as well, power should be decentralized.

II. The United States Today is Not Dysfunctional

The United States of America is today the third most populous country in the world after China and India, and it is also the third largest territorially after Russia and China if one subtracts, as one should, Tibet from China. The United States is miraculously held together by its division into 50 small nation states rather than say four mega-states like: 1) the Northwest; 2) the South; 3) the Midwest; and 4) the West. A four state U.S.A. would lead to immediate secession of either the Northeast or the South. It is only our division into 50 small states that holds the U.S. together and allows Americans to reap the four great benefits of a Federation: 1) lower economies of scale; 2) fewer races to the bottom and collective action problems; 3) correction of negative externalities caused by one state against another; and 4) Federalist 10 protection of minorities civil rights. I shudder to contemplate, much less welcome, a breakup of the American federation, as Sandy Levinson does. I think the world should move in the opposite direction towards more populous and territorially large representative democracies and not toward Levinsonian anarchy, small direct democracies, and dystopias.

The United States of America has the highest GDP per capita of any of the G-20 constitutional democracies. According to the IMF, in 2018, out of 180 countries in the world the GDP per capitas of the G-20 Nations ranked as follows: 1) the U.S. was 10^th behind only the Gulf states; Switzerland; and Hong Kong 2) Germany was 16th; 3) Australia was 17th; 4) Canada was 21^st ; 5) France was 25^th ; 6) the U.K. was 26^th; 7) Japan was 28^th; 8) South Korea was 29^th; 9) Italy was 33^rd; 10) Russia was 49^th; 11) Mexico was 63^rd; 12) China was 73^rd; 13) South Africa was 89^th; 14) Brazil was 80^th; and 15) India was 119^th. Americans are by far and away the most economically productive people on the planet.

The United States also has one of the lowest unemployment rates of any of the G-20 nations. See e.g., : 1) U.S. 3.8%; 2) France 8.9%; 3) Italy 10.6 % ; 4) South Africa 27.5 %; 5) Turkey 10.3 %; and 6) Brazil 13.1%. The unemployment rate in the United States today is at the lowest level it has been at since 1968. More women and African Americans are working today in the United States than ever before in American history. The U.S. inflation rate is 2.1%, which is lowers than: 1) the U.K. at 2.7%; 2) India at 3.8%; 3) India at 3.8%; 4) Mexico at 6%; 5) South Africa at 53%; and 6) Turkey at 24.52%. Added together the U.S. has the lowest misery rate: unemployment rate plus inflation rate of any of the G-20 constitutional democracies.

Moreover, the U.S. Constitution is both the oldest and the shortest written constitution in the world, even after accounting for all of its 27 amendments.

The U.S. was the first nation in the world to set up a democracy, in 1789, and it was the first nation in the world to grant all white men the right to vote, and to grant to all African American men a constitutional right to vote in 1870.

The U.S. abolished feudalism and monarchy or theocracy in 1789, earlier than did any other nation! And, in 1868, the U.S. banned all hereditary caste systems (including the Black Codes) at a time when feudalism continued to exist in Europe (as it does to the present day in the U.K.) and at a time when the Hindu Caste system prevailed in India.

The United States was the second G-20 constitutional democracy, after only Australia, to give women the right to vote in 1920. Women did not get the right to vote until 1928 in the U.K. and until after 1945 in Germany, France, Japan and Italy.

As late as the Civil War (1861-1865), the United States was still the only democracy in the world. This is why President Abraham Lincoln said at the end of the Gettysburg Address that the outcome of the U.S. Civil War would determine “whether government of the people, by the people and for the people shall perish from the earth. When Lincoln spoke those words: 1) the Revolutions of 1848 in Europe had all failed; 2) the Emperor Napoleon III governed France; 3) the Emperor of Japan governed that island country; and 4) in the U.K., only one-seventh of all men could vote for the House of Commons whose actions were subject to veto by the oligarchic House of Lords until 1911.

On the human rights front, Americans confronted and eliminated de jure racial discrimination in employment and academia between 1948 and 2019; the U.S. recognizes a federal constitutional right to same sex marriage unlike the European Court of Human Rights; the Supreme Courts of India, Japan, Indonesia, and South Korea in a world where Russia, China, and all Islamic countries persecute LGBTQ people.

The U.S. “melting pot” has absorbed waves of immigration from Ireland, Italy, Southern Europe, and Eastern Europe in the 19^th and 20^th centuries, and it is now absorbing new waves of immigration from Latin America, Asia, and even Africa. Essentially, no Americans try to emigrate out of the United States while millions of people from around the world try to immigrate to the United States. People vote with their feet, and they clearly do not buy Professor Levinson’s claim that the U.S. constitutional system is dysfunctional.

At the same time that the U.S. has secured the Blessings of Liberty to ourselves and our posterity, the U.S. has also been the Great Arsenal of the Democracies. We fought and won World War I; World War II; the Cold War; and the War against Al Qaeda. It is the American military that, today, protects the European Union from Russian invasions and South Korea, Japan, Indonesia, India, and Australia from Chinese invasion. We speak softly but carry a big stick. We keep the Global Peace, but we do not try to subjugate the democracies of the world into an American version of the British Empire.

III. Why Sandy Levinson is Wrong to Criticize Veto Points

Sandy Levinson’s attack on the U.S. Constitution is a reprieve of the Progressive Era attack between 1890 and 1937. Levinson thinks the Framers of the Constitution were rich white men who set up a system with many veto points, i.e., 1) bicameralism; 2) the president’s veto power; and 3) judicial review all of which doom his desire for soak the rich wealth redistribution of the kind attempted by: 1) the Bolsheviks in the former Soviet Union; 2) by Mao Ze Dong in communist China; 3) by Ho Chi Min in Vietnam; 4) by Jim Jong un in North Korea and by his father and grandfather; 5) by Fidel Castro in Cuba; and 6) by Ceasar Chavez and by Nicolas Maduro in Venezuela.

As the examples above suggest, I have a very dim view of what would be the end result of Levinson’s reform program. In the 20^th Century, we took two populations; of the same ethnicity; speaking the same language; and with the same history and culture, and we divided them into a free market half called, West Germany and South Korea; and a radically egalitarian half, called East Germany and North Korea. The results are now in on that experiment. Free market systems with some inequality thrived; egalitarian societies with command and control economies nose-dived. In the wake of this history, the onus is on Levinson to show why any similar junking of checks and balances and experimentation with equality would not produce the same outcome in the U.S., as it it produced in East Germany and North Korea.

The usual response to this is to argue in favor of the U.K. parliamentary system, as Woodrow Wilson did. That country has had an essentially two party system where the party that wins control of the House of Commons has a five year dictatorship to make even constitutional changes. Pursuant to that model, Tony Blair with 43% of the vote nationwide won a five year term during which he devolved power to Scotland, Wales, and Northern Ireland; reduced the number of hereditary peers in the House of Lords; and paved the way for his successor David Cameron to: 1) call for a popular referendum of people then living in Scotland on Scottish independence, a move which was barely staved off with only 55% voting to stay in the U.K., and, then, 2) to call a referendum on whether Britain should vote to leave the U.K., which she did by a vote of 52% for Brexit and 48% opposed.

In my humble opinion, the British Constitution is idiotic in giving political parties with 43% of the vote nationwide the power to make constitutional changes. I cannot think of a stupider way of allocating power or of a stupider set of outcomes even if I shared Sandy Levinson’s preference for egalitarian outcomes, rather than for equality of opportunity, which I do not.

The standard academic response to what I just said is to follow Bruce Ackerman and favor the German constitutionally-constrained parliamentary model with a powerful Constitutional Court, which Ackerman claims is preferable to either the U.S. or the U.K. models. The current German Constitution is the best Constitution Germany has ever had, but given how badly the two prior German Constitutions worked out that is not saying very much. The current German Constitution sets up its own system of checks and balances with bicameralism on most votes; strong state federalism; and judicial review. What the German Constitution lacks, however, is energy in the executive, which is why Germany is dependent on the United States for foreign policy and military support. Germany cannot even exert leadership in the European Union much less than against Russia.

In its last parliamentary election, the voting outcomes were as follows: The Christian Democrats and the Christian Social Union won 32.9% of the vote, their worst showing ever; the Social Democrats won 20.5% of the vote, their worst showing ever; the Free Democrats won 10.7% of the vote the government, but they were frozen out of ; the Left and the Greens each won 9% of the vote, among their best showings ever, but they too were frozen out of the government; and 13% of the vote went to the Alternatives for Deutchsland Party (AFD), which became the official opposition with the third best showing of any party.

The AFD is an anti-Islamic, anti-semitic, homophobic political party. Proportional representation in Germany is producing the same kind of instability that led to the collapse of the Weimer Republic in Germany in 1933; the collapse of the French Fourth Republic in 1958; and the revamping of Italian electoral rules after 1991. It is not clear that Germany can govern itself, safely, much less than lead an Arsenal of the Democracies or even the European Union. I predict the AFD will GAIN seats in the EU parliamentary elections.

Sandy Levinson would no doubt counter that the election of Donald Trump, which has led to an economic boom, is just as alarming as is the rise of the AFD in Germany. This is quite simply not true.

First, of all, we peacefully elected governors and state legislatures in 2017 in Virginia and New Jersey, and the Democrats swept both states by huge margins. Republicans surrendered power peacefully. Second, we peacefully held mid-term elections in 2018, and the Democrats won control of the House of Representatives in a landslide. Again, Republicans surrendered power peacefully. Score two for veto blocks!

Third, we peacefully held U.S. Senate elections in 2018, and Democrats lost in Indiana, Tennessee, Missouri, Florida, and Iowa because of their mistreatment of Trump Supreme Court nominee Brett Kavanaugh. We would probably have a Democratic majority in the Senate today if it were not for the Kavanaugh hearings riling up and turning out the Republican base. Levinson and other legal academics need look no further than the end of their nose if they want to understand why in 2018 we elected a Republican Senate.

Let me comment, however, on just a few of the alleged flaws of the U.S. Constitution, according to Levinson. First, it has too many veto points. I disagree. I think fleeting passions of the moment should not become federal law but only matters as to which there is a settled national consensus that manifests itself across the three elections that we hold two years apart under our Madisonian Constitution. This rolling series of three elections, held two years apart has all the virtues of a tracking poll versus a one off at a time poll. We run our democracy using a tracking poll to discern the Volonte General whereas the U.K.; Germany; and France use a one off for every five years poll. It should not come as a surprise to anyone that the one off at a time poll less accurately discerns the Volonte General than does the tracking poll of three elections held two years apart. It leads to a bipartisan consensus on a whole host of sub-constitutional issues.

Matters as to which there is such a consensus include: 1) Social Security; 2) Welfare payments for the poor; 3) the Civil Rights Act of 1964; 4) most of the Voting Rights Act of 1965; 5) The Clean Air and Clean Water Acts of 1970; 6) Medicare and Medicaid; 7) access for women to abortion; and, most recently, access to same sex marriage. NONE of these matters is under any threat today from either President Trump or the Supreme Court. Those who think otherwise will soon be proven wrong.

Second, Levinson thinks presidential power is too large, and I and most conservatives agree. The solution is to go through the U.S. Code and reclaim many of the powers, including the power to declare states of emergency, from the president and return these powers to Congress. At the same time, the notion that Trumpian presidential power is a threat to democracy is a gross misstatement of the facts. Trump cannot build his wall on the Mexican border because a Republican Congress would not appropriate the money to do so between 2017 and 2019. Trump cannot lift President Obama’s sanctions on Putin and the Russian oligarchs because Congress by an almost unanimous vote of both Houses in February 2017 codified them into federal law. Trump had no control whatsoever over the Justice Department for the first two years of his term because Senate Republicans made him keep Jeff Sessions in place. And, unlike Barak Obama in Libya; George W. Bush in Iraq; Bill Clinton in Bosnia; George H.W. Bush in Kuwait and Panama; and Ronald Reagan in Granada, Trump has NOT EVEN TRIED to start an unconstitutional war. Trump made no effort to disrupt the midterm elections, and they went against the party in power in the White House as so often they do.

In sum, President Trump has been checked and balanced to the point where he is almost irrelevant. In contrast, the flawed electoral systems of the United Kingdom and of Germany may very well have ruined those nations for good.

Levinson complains bitterly about the U.S. Senate’s deviation from the principle of one person, one vote: But the Democrats benefit at least as much from this arrangement as do the Republicans, which is shown by considering the numbers of low population States. The six low population states, which lean Republican include: 1) Wyoming; 2) Alaska; 3) Montana; 4) Idaho; 5) North Dakota; and 6) South Dakota. The six low population states which lean Democratic include: 1) Vermont; 2) Rhode Island; 3) Delaware; 4) New Hampshire; 5) Vermont; and 6) Hawaii. The low population states effectively cancel each other out, which is one of many reasons why abolition of the Senate would be a very bad idea. I would, however, get rid of the Senate filibuster of legislation for reasons I will explain below.

4. Useful Reforms to Consider

First, I would get rid of the Senate filibuster of legislation, which I think introduces one veto point too many, and too arbitrary for the benefits of the rule to exceed the cost.

Second, I would trim presidential power by returning to Congress broad powers that it has unwisely delegate to the president or the administrative agencies.

Third, I would support judicial review not only of the equality in population of U.S. House of Representatives seats, but also of the “compactness” of the lines by which districts are drawn. Under the current system 40% of the seats are safely Democratic; 40% are safely Republican and only 20% are genuinely up for grabs. Safe Democrats position themselves way to the left to stave off primary challenges while safe Republicans position themselves way to the right to stave off conservative primary challenges.

Fourth, I would amend the Constitution to establish an 18 year term limit for Supreme Court justices; to fix the size of the Court at nine justices; and to provide that there will be one vacancy every two years during a president’s four year term. The first vacancy should occur on June 30^th of the year in which the President was elected. The second vacancy should occur on June 30^th of the President’s fourth year in office. Neither Presidents nor senators should be allowed to draw their salaries, access their benefits, or receive any sum of money from any other person until the Supreme Court vacancy in question is filled.

Steven G. Calabresi is Clayton J. and Henry R. Barber Professor of Law at Northwestern-Pritzker School of Law. You can reach him by e-mail at s-calabresi at law.northwestern.edu

Posted 9:00 AM by Guest Blogger [link]