Thinking Way Outside the Box

Mark Tushnet

Two of the best books about constitutional design I’ve read recently (“recently” broadly defined) are Splitsville by Christopher Zurn and Lottocracy by Alexander Guerrero. Both authors are philosophers, though Guerrero has a law degree. And maybe the fact that they aren’t in a law setting is significant because they don’t have to worry about being “realistic.” (Guerrero refers to David Estlund’s important argument that we have to be quite careful in defining the “can” in “’ought’ implies ‘can.’”)

What’s interesting to me is that both books propose ridiculously unattainable revisions in our present constitutional arrangements—Zurn the division of the United States into five nations through what I would describe as peaceful coordinated secession, Guerrero the replacement of representative democracy with a number of “single issue legislatures” whose members would be selected randomly from the general population. Yet, ridiculous as they are (in terms of proposals for “realistically attainable” constitutional revisions), both are extremely well-argued. I’m sure that anyone who has read this post this far has already come up with a bunch of objections to each proposal—and Zurn and Guerrero have pretty much anticipated all of the obvious and many of the not-so-obvious objections to their proposals.

Aside from simply recommending that people read these books, I use them to suggest the value of thinking way outside the box. And not for the “expanding the Overton window” kinds of reasons that you can give for coming up with, for example, statutory mechanisms for imposing term limits on federal judicial service. The following metaphor might not work all that well but it did occur to me: Zurn and Guerrero aren’t interested in expanding the Overton window, they’re in favor if smashing the window and its frame completely.

Why might proposing ridiculous constitutional revisions be valuable? In part because it brings right into your face what Charles Black, drawing on Georg Jellinek, called “the normative power of the factual.” As I recall, Black used the phrase to condemn the normative force we often give to the arrangements we have—and if I’m wrong about Black’s usage, so what? The point I’m imputing to him is important. RFK (senior, I suppose one has to say now) is often quoted as saying, “Some men see things as they are, and ask why. I dream of things that never were, and ask why not.” The implication those who quote RFK ask us to draw is that the answers to the “why not” question ought to make us uncomfortable. That’s what Zurn and Guerrero—and others who think way outside the box—want to do as well.

And, not entirely by the way, Guerrero notes that there are actually quite a few cousins of law-making by randomly selected bodies rattling around these days (entirely apart from juries, which he mentions but doesn’t focus on). Most don’t involve bodies that have the power to make enforceable law, though I believe that one or more of the Belgian linguistic communities are experimenting with giving such a body that power. And as to peaceful secession, it’s got its own cousins in proposals for radical decentralization (some of which also involve decision-making by randomly selected bodies). So maybe we ought to welcome thinking way outside the box because it might lead us to notice and take seriously proposals that are at the moment just a little outside the box. (This is also the case for reading some works of science fiction as sources for thinking about constitutional design.)