Balkinization: Reply to Critics-- Part Three: David Pozen on the potential malleability of the Constitution of Settlement

Reply to Critics-- Part Three: David Pozen on the potential malleability of the Constitution of Settlement

Sandy Levinson

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

David Pozen’s post suggests that what I call “the Constitution of settlement” is in fact potentially less truly “settled” than it may seem to be. Before turning to the substance of his argument, let me say that although I am flattered by some of the comments he makes about my emphasis on “the Constitution of settlement,” I do not share his apparent belief that it has had much genuine effect on the way that the Constitution is discussed or taught within the legal academy. That is, our collective attention continues to be dominated by the “Constitution of conversation,” particularly as defined by the willingness of the Supreme Court to consider certain issues. I do not deny the practical importance of what might also be termed the “litigated Constitution”; if the Court declares that gerrymandering is in fact non-justiciable or declares, in the face of bald-faced lies by the Trump Administration, that it is perfectly acceptable to add the citizenship question to the forthcoming census, with readily predictable consequences for undercounting minority respondents and, therefore, affecting reapportionment in favor of the GOP, that will certainly be significant. But I continue to believe that it is even more significant that the Senate is controlled by a Republican majority that in fact represent considerably less than an actual majority of Americans, given the consequences of giving equal voting power to every state. And even if Steve Calabresi is correct, as discussed in an earlier post, that at present Democrats control six of the twelve smallest states, it is also demonstrably true that these states are increasingly unrepresentative of the rich pluralism and multi-culturalism that typify the larger states. They are systematically more rural, whiten older, and more Protestant than is the rest of the country. But these arguments are old hat, and I have no reason to believe that Pozen truly disagrees with them.

Rather, his title of “the shrinking Constitution of settlement” comes from his perception that what I have sometimes labeled the “hard-wired” features of the Constitution are in fact more vulnerable to a variety of “workarounds.” Thus, he notes the fact that “fifteen jurisdictions,” who cast among them 170 electoral votes, “have signed on to the National Popular Vote compact, which would effectively neuter the Electoral College and nationalize presidential elections.” This, of course, is true. But 170, though impressive, is far short of the 270 votes necessary to prevail in the electoral college, and the so-called “compact”—I put it that way in order to highlight the fact that it is not at all clear, as a legal matter, that the agreement by the relevant states would be legally enforceable in the absence of congressional approval, which might be very hard to attain, especially in the egregious Senate—will not kick in at all unless enough states agree so that the Electoral College is truly “neutered.” Thus no one believes that the 2020 election will be conducted under any kind of reformed scheme. More to the point is the fact that the proposed compact focuses exclusively on the problems presented by the 2000 and 2016 elections: the fact that the plurality national vote winner did not prevail in the electoral vote. I don’t want to minimize the importance of that fact, especially in 2016, when Donald Trump clearly and unequivocally lost the popular vote by almost 3 million votes. But I continue to believe that the 1968 and 1992 elections, to mention only two especially significant post-World War II elections (and not, for example, the 1912 or 1860 elections), present their own problems inasmuch as the two winners, Richard Nixon and Bill Clinton, had the demonstrated support of only 43% of the population, and, of course, were faced as well by a “divided” Congress in which at least one house was controlled by the opposition party. I strongly believe that anyone getting to the Oval Office should, as in France and the American state of Georgia (putting voter suppression to one side), be able to make a demonstrable claim of support by the majority of the electorate, as through a run-off or use of the Alternative Transferrable Vote (now adopted in Maine). Pozen is certainly correct that there is increasing discussion among academics and a few pundits and politicians about reforming the electoral college, but I think it remains to be seen whether it will genuine “gain traction” or simply founder on the shoals either of Article V, insofar as some of the proposed changes would undoubtedly require constitutional amendment, or on the determination by the Republican Party that the GOP probably benefits from continued reliance on the Electoral College and, therefore, will resolutely vote against any legislation that would do it in.

I’m also skeptical about the actual viability of proposals to grant statehood to Puerto Rico and the District of Columbia. With regard to the former, there is the embarrassing fact that a majority of voting Puerto Ricans have never actually endorsed application for statehood. They have been outvoted by those who prefer sticking with the present Commonwealth status, whatever its constitutional problems or advocating out-and-out secession from the American Empire and declaring Puerto Rican independence. But, assuming that a majority do indicate a clear desire to join the Union as a state, there is still the question whether the GOP would tolerate such a result, given the fact that Puerto Rico would be entitled to at least four and probably five representatives as well, of course, as two senators, all of whom would be very likely to be Democrats given the Trump/GOP indifference to Puerto Rico following Maria. The Constitution does require congressional approval before a new state can be admitted to the Union, and there is simply no reason to believe that it would be forthcoming from the Senate, particularly if one adds to the mix the possibility of a filibuster by those who would treat as a deal breaker the fact that Spanish continues to be the dominant language on the island, including the official language of territorial (as distinguished from outposts of the national) government, such as the judiciary itself. As to the District of Columbia, I confess myself deeply ambivalent. As someone who is appalled by the excessive power held by small states, including those whose politicians I generally like and agree with, I see no strong reason to support giving the roughly one million residents of the District of Columbia the same voting power as the many states that would be larger. Moreover, one must recognize that the District is a company town, consisting disproportionately of those who work for, or lobby, the federal government. Far better, as public policy, was be the "recession" of most of the District back to Maryland, so that the District would in the future really be effectively limited to the area covered by federal buildings. In any event, it is readily understandable that the GOP would view admission of the District as a state as a patent piece of "Senate packing." Better to expend such political energies on court packing, whose results would be more likely to serve liberal political interests!

Corey Robin's comment is directed primarily at Jack's arguments about social movements, though I am gratified by his agreement that our formal structures have something to do with the probable success or failure of such movements. In particular, I think it is important to note that some of the programs that are being much discussed by Democrats, particularly "insurgents" in the House of Representatives, are primarily "talk." Medicare for All, whatever one thinks of it as a matter of public policy, is extraordinarily unlikely to become law even in the relatively unlikely event that the Democrats should sweep the 2020 elections and regain the Senate. (If the Senate remains Republican, then we should all realize that there is zero chance of any truly progressive legislation being passed by Congress, with the consequence being that Democrats would once again find themselves/ourselves supporting dicey exercises of executive power in order accomplish anything at all.)

Pozen may be right that the veto is exercised with diminished frequency (as is the case, incidentally, also with the use of the presidential pardoning power), but it is scarcely absent from our political system at this very instant. Donald Trump has beaten back bi-partisan attempts to rein in his power to declare a national emergency on the Southern Border or to participate in a vicious and undeclared war in Yemen by vetoing legislation. Although there is increasing bi-partisan criticism of “delegation run riot” vis-à-vis the president and foreign policy, including setting tariffs, I see no reason to believe that the criticism is gaining real traction. And, of course, the catch-22 is that the President is presumably entitled to veto any legislation that would directly clip his inordinate powers. Just as Barack Obama shifted over the years from reminding us that he was not “our king” or “emperor” to a de facto willingness to engage in monarchical rule when pushed over the edge by an obdurately partisan Congress, one can only wonder about the willingness of a Democratic president, whoever it might be, to accept sabotage from Mitch McConnell, should he continue to be the majority leader of the illegitimately apportioned Senate. I emphasized in our book that had Hillary won, most of us would be as depressed as we are now, albeit for different reasons. In particular, though, she would be pushing executive power to its maximum reach (and perhaps beyond) because a Republican Congress would in no way allow any of her domestic policy proposals to be realized.

Pozen seems to echo David Mayhew in declaring that Congress “remain[s] reasonably productive in the face of rising partisan rancor.” I confess I don’t see that at all. Were Mayhew correct, one might expect to see a higher level of approval or, or confidence in, Congress by the American public. As of the end of May, most Americans continue to “disapprove” of Congress. A Reuters/Ipsos poll shows a surprisingly high approval rate of 26%, but this is offset by the fact that 66% disapprove. An Economist poll indicates only 17% approval, with a 62% disapproval rate. Moreover, only a fraction more than one-third of the public believes that the country is moving in the right direction.

Pozen also notes, altogether accurately, that many “prominent commentators and advocacy groups” on both the left and right believe—I think altogether correctly—that life tenure for Supreme Court justices is an idea whose time has passed. But that in no way at all is translating into any actual likelihood of reform. As noted in my response to Steve Calabresi, who also agrees that it is time for a change, he represents most lawyers (though not myself and, perhaps Pozen) in believing that a constitutional amendment would be necessary, and I am not aware that anyone has even bothered to introduced such an amendment, nor, for what it is worth, do I know of any actual legislation that would in fact test the possibility of doing an end run around Article V. None of the myriad of Democratic presidential candidates, even those willing to criticize the electoral college, has really attempted to generate a serious discussion of the federal judiciary in general or the Supreme Court in particular. Should the Supreme Court in fact rule gerrymandering to be non-justiciable and allow the citizenship question on the census—and, who knows, revisit the 5-4 Arizona decision that barely allowed the voters of Arizona to transfer reapportionment from the state legislature to a state commission—then I think it would be incumbent to put all options on the table, including court-packing.

I of course agree with Pozen that one ought not overestimate the rigidity of the distinction between the Constitutions of “settlement” and “conversation.” I have never rested that distinction on a theory of linguistics that asserts a hard-and-fast distinction between the two categories of speech. My approach is relentlessly pragmatic, resting only on the belief that we in fact operate as if there is a distinction. Everything can be problematized in a sufficiently high-theory seminar, but we accept, for example, the fact that “two” (as in two senators/state) or January 20 (as in the 20^thAmendment’s setting out of Inauguration Day) are not subject to the same kind of audacious interpretive moves as, say, the Equal Protection Clause. I have written elsewhere of the irrelevance of Ronald Dworkin’s Hercules when faced with some of these textual features of the Constitution. This is why I emphasize the importance about talking about the wisdom of the Constitution instead of concentrating only on its meaning.

Finally, I couldn’t agree more that I need a considerably better worked-out theory of “democracy” going into the future. I am confident that the Constitution is “undemocratic” under any plausible 21^stcentury theory of democracy, but that completely begs the question of what the best 21^stcentury theory might actually be given the actual world(s) we live in. Can any theory of democracy really make sense for a country of 325 million people, let alone the far vaster territories encompassed by Calabresi’s fascinating call for a more vigorous transnatioal polity in at least some respects? Jack is spending more and more of his time studying the profound implications of modern social media, which call into question all sorts of assumptions we have relied on for our theories of the First Amendment (for starters). I shall address in some other postings, including a forthcoming review for Balkinization of Ken Kersch’s extraordinary book on conservative approaches to the Constitution, of the fact that the legal academy, overall, pays insufficient attention to political theory, including the rich literature on the meanings of democracy. This also has important implications, incidentally, for the continued viability of any theory of “popular sovereignty” and, concomitantly, the ability to draw on a purported “constituent power” that is capable of making geneine decisions based on what Publius called “reflection and choice” about how we are to be governed.

Let me conclude, though, with acknowledging my deepest gratitude to David Pozen for his thoughtful and challenging remarks on our book and, in particular, my own attempts to make sense of the Constitution as a document truly constitutive of our political order.

Posted 10:30 AM by Sandy Levinson [link]