Wednesday, December 06, 2006

Levinson on Constitutional Reform, Part II

Stephen Griffin

Part II of my post takes up the idea of "policy catastrophes":

To get a grip on the idea of a policy catastrophe, consider these examples:

1) Collapse and government bailout of savings and loan institutions in the 1980s.
2) Destruction of the space shuttles Challenger (1986) and Columbia (2003).
3) 9/11 terrorist attacks.
4) Inundation of New Orleans in 2005 after Hurricane Katrina due to failure of levees and subsequent inadequate government response.

Note: I invite you to come up with other examples. The Iraq War? The policy response to global warming? But remember: there must be a defensible link to the structure of our constitutional order.

These catastrophes share some characteristics. First, they are all policy outcomes in the sense that they are linked to the pursuit of certain policies by government. Second, no one defends these policy outcomes. While some might question the underlying programs, such as the regulation of banks or the building of space shuttles, no one contests that once government regulates an industry or builds a complex space transportation vehicle, the regulation should be effective and the vehicle should not fail. The savings and loan debacle, for example, cost taxpayers around $150 billion, a gigantic sum that could have been employed for many other useful purposes. If the debacle could have been avoided through some sort of reform, everyone would presumably be interested in at least investigating that possibility.

You may be waiting for me to link these disasters to some constitutional structure. Before I provide some suggestive leads, let’s reflect on the often-presumed pervasive background role that the Constitution plays in our government. My observation is that when policies go well, when government succeeds, the strength and stability of our constitutional system is usually celebrated. Matters seem to be quite different when policies go poorly. In that situation, the somewhat god-like role usually attributed to the Constitution suddenly disappears, replaced by incompetent administrators and feckless politicians. If, however, the Constitution is successful in structuring government action, then we are bound to investigate whether that structure is at fault when policies fail, especially when they fail spectacularly.

Experienced students of government policy know that when policies and program administration goes wrong, there is usually a trail (often long) leading back to Congress. Especially with respect to policies pursued over decades, Congress is still “keystone of the Washington establishment.” (Morris Fiorina’s phrase and see his book of the same name) If our “homeland security” and intelligence agency structure is fragmented, if key regulations governing the savings and loan industry are loosened, if NASA builds a space shuttle scientists scorned (whose components come from congressional districts scattered across the country), and the Army Corps of Engineers had to stretch a Louisiana flood control project designed to be completed in ten years over decades, it is usually because members of Congress wanted it that way.

The tendency of members of Congress to think about their own districts and states rather than the national interest is not new. But the advent of the administrative-welfare-spending state made an extraordinary difference to the impact members of Congress could have on national policy. At Time 1, the federal government assumed no responsibility for preventing or alleviating the consequences of natural disasters such as floods or earthquakes. Once the government did assume this responsibility at Time 2, it became accountable for its policy decisions. If, however, the structure of Congress involves making public policy “almost as an afterthought,” (Fiorina) then it is difficult to see how future policy disasters might be prevented. To be a bit more precise, if making national policy is a byproduct of what Congress is really doing – funneling money and serving as ombudsman to individual districts and states – we might consider a different structure that would encourage policymaking as such.

Critical analysis of our political system often amounts to high-minded hand-wringing over how the national interest is ignored. But the terrorist attacks of 9/11 and the aftermath of Hurricane Katrina should have demonstrated that this sort of analysis is a practical necessity. When poor policy choices or, more likely, the failure to choose results in the deaths of thousands of citizens and the loss of hundreds of billions of dollars (as has actually happened), the inquiry into the consequences of constitutional structure should not be regarded as theoretical or a parlor game about a constitutional convention most people think we are not going to have.

Presumably there is no such thing as a constitutional structure that will allow us to avoid all policy catastrophes. We are still not the angels that Madison invoked in his famous argument and our knowledge of the future is limited. But understanding that there might be a link between such catastrophes and constitutional structure might make us more likely to acknowledge that the Constitution is not exogenous to the problems and faults in our political system. The Constitution is not an impartial spectator, so to speak, but a participant with a set of biases, just like everyone else.

Sandy closes his book by lamenting the inflexibility of Article V. (159-66) He generously cites my work for the proposition that if constitutional change is not allowed because of the difficulty of amendment, then it may occur through other means, such as informal constitutional change through the political system and judicial interpretation. (22) Sandy makes the sound argument that there are limits to this sort of informal adaptation. If we want to adopt a parliamentary form of government in which executive officials serve in the legislature, formal change through Article V is the only way to get there. (163-65) This point applies to nearly all the changes Sandy advocates and explains his interest in making change through Article V easier.

An issue related to Sandy’s point is whether the inflexibility of Article V has had adverse consequences. Here scholars disagree. It is conceded by many that the U.S. Constitution is one of the more difficult constitutions in the world to amend. But Chris Eisgruber has defended the position (in his book Constitutional Self-Government) that having a relatively inflexible constitution increases the truly democratic character of a political order. I wish Sandy had said something about Eisgruber’s argument, but I will take a stab myself.

Any argument about the costs and benefits of the supermajority barriers to constitutional change in Article V necessarily involves some counterfactual speculation about what our constitutional history would have looked like had the framers not built the “iron cage” of Article V, as Sandy puts it. (165) But the question is not entirely about the effects of certain procedural changes. Several generations of Americans have absorbed not only the reality that formal constitutional change is quite difficult, but the normative view that it should be difficult, that we should not “tinker” with the Constitution. The proposal to make formal change through Article V easier thus concerns our “constitutional culture,” a set of views and understandings about how constitutional change should be made, just as much as it concerns alterations to the text of Article V. (as Sandy notes – see 163)

In today’s world, Americans associate prospective constitutional amendments with efforts to alter rights, such as abortion, gay marriage, and flag burning. Scholars interested in constitutional change believe the main issue lies elsewhere – with the still uncertain constitutional status of the New Deal, the administrative state, and the greatly changed role of the presidency after World War II, the Cold War, and now the “war on terror.” Certainly this issue is compatible with Sandy’s focus on the structural aspects of the Constitution, as opposed to its provisions concerning rights. In my experience, however, the existence of a continuing issue with respect to the constitutional legitimacy of the New Deal (as well as the other items mentioned) has proven hard for most legal scholars to grasp. There is a tendency to see these problems as involving questions of constitutional interpretation, not amendment or legitimacy.

Undermining this common view would require a very long detour into the byways of American political history. But in brief, important elements in American conservative thought never accepted the legitimacy of the New Deal. One of the main reasons, a concern which remains alive today, was that conservatives believed it was a change of constitutional dimensions that did not take place through formal amendment. President Roosevelt’s deliberate decision to treat the changes of the New Deal as matters for the Supreme Court and constitutional interpretation had important consequences that were not foreseen at the time. I should say immediately that it is far from clear that it would have been better, all things considered, for FDR to press a set of amendments on the country. There were many difficult issues involved and the right course of action was not obvious. The point I would stress is that there were costs, no matter what choice FDR made.

Many Americans believe that the Constitution does not cover every contingency and that it does impose meaningful limits on government action. It follows that there may be moments in history in which the only legitimate way to obtain constitutional power is through formal amendment. The failure to ratify the New Deal, as well as other important aspects of the contemporary constitutional system, through amendments has created an ongoing issue within American constitutionalism. Of course, some believe such views are the hobbyhorses of repudiated cranks like Barry Goldwater, but that was before the conservatives who supported Goldwater in 1964 came to power with Ronald Reagan in 1980. Nevertheless, the widespread view that amendments are dangerous has operated to suppress the kind of politics and political discussion that may be necessary to provide a full measure of legitimacy for government action in the post-New Deal state. For me, the democratic cost of an inflexible amendment process is the fundamental issue posed by the infrequency of amendment through Article V.


In the clear light of hindsight, I believe there is a great deal to be argued in favor of amending, rather than reinterpreting, the Constitution at the time of the New Deal. As you say, many conservatives consider the New Deal unconstitutional and would like to turn back the clock to before 1937.

I consider such views unrealistic. The long-run centralizing trends were irresistible. Large corporations were spreading production across state lines in a way no one in the 18th century could forsee. Advances in transportation and communications technology (railroad and telegraphs in the 19th century, cars and telephones in the early 20th) were "shrinking" the country. Mass media were creating an increasingly unified national culture. And people politically identified more and more with the federal government and less with the states. As the country became more integrated, a more centralized government was necessary and inevitable.

The advantage in amending, rather than reinterpeting, the Constitution was twofold. First, it would have prevented conservatives from denying the legitimacy of that increased centralization. Second, it would have established just what we did and did not want to federalize. The uncertainty in that regard creates serious problems to this day.

That being said, I do think it is wise to make amendments to the Constitution difficult. If our Constitution is more difficult to amend than other contries', it is also sparser. (It leaves to the discretion of Congress the entire structure of the executive branch and the courts, for instance). Our Constitution was made intentionally sparse in order to give it flexibility.

I believe the most valuable purpose served in making amendment difficult is to protect our Constitition's sparseness, and to allow the federal government the flexibility needed to deal with a complex world. Anyone who doubts that this is true need look no further than numerous state constitutions, which have become veritable Christmas trees of amendments, many of them seriously constricting governments and interfering with their function. And this problem is worst in the states that make their constitutions easiest to amend, i.e., the ones with the initiative.

In short, I believe the amendment process should, indeed, be used sparingly, for major realignments like the New Deal. A sparse Constitution gives the most room to maneuver, and too many amendments threaten that sparseness.

Perhaps this is obvious, but it certainly seems reasonable to me that since the creation of the Constitution itself required a national convention followed by ratification by three-fourths of the state legislatures - that is to say, a clear indication of national consensus - that it would follow that any change to the original should require an equal demonstration of national consensus.

In circumstances of perceived urgency or crisis, executive and legislative actions of questionable legitimacy, whether various New Deal acts, the Lousiana Purchase, internment of Japanese-Americans, etc., were made, the popular support of which muted and/or delayed any serious political consideration as to the legality or constitutionality of the acts. That extra-legal "flexibility", while less than ideal, is arguably preferable to having Constitutional Amendments allowing for any vague executive action that "promotes the general welfare" or authorizing the detention of citizens without trial to protect "public safety".

As to making the amendment process less difficult, all it would take is passing a single amendment changing Article V itself, allowing for, say, amendment by referendum or initiative. Having found myself in the voting booth trying to parse the language of state constitutional amendments pertaining to anything from what blueberry growers can do to whether certain specific equipment should be exempt from sales tax, I can say for myself that I lean in favor of old-style American republicanism.

I think that the interpretation of the commerce clause is a huge stretch and should be ratified by a change in the constitution.

The commerce clause jurisprudence signals to me that it is too hard to come to an amendment to the constitution. The federal government has taken over significant parts of State's Powers (which I'm not againt, by the way), but this has happened through interpretation of the commerce clause. I think the power of the federal government should be ratified by the text of the constitution.

In my opinion, the treatment of the constitution as living, derives from the inability to make amendments to the constition. The world isn't the same as in seventeenhunderderdsomething. The constitution has to change accordingly through constitutional changens, if not interpretation of the constitution to the changing world will change the meaning of the constitution.

The reason Article V doesn't get used isn't that it's "inflexible"; It's that it actually requires Congress to secure the permission of the states to make changes. And judicial reinterpretation does not. So why should Congress, which absent a constitutional convention originates all amendments, ever take the risk that it's desired changes will be rejected?

Living constitutionalism isn't the cure for a broken Article V, it's what broke it.

Priest, so long as we retain (Restore, really; It only takes 5 votes to "ratify" an "amendment" today.) the supermajority requirement, we won't see a laundry list federal Constitution; State constitutions accumulate excess amendments because they are in most cases about as easy to amend as enacting statutes.

I'd propose an amendment to Article V simply providing that any amendment ratified with the same language by the required number of states becomes effective, without regard to where it originated, Congress, the Supreme court, or the states.

Can you imagine FDR early in his term proposing an amendment concerning the commerce clause? What form might it have taken? Would such an amendment have anticipated the SCOTUS decisions that came down without a formal amendment during FDR's terms? Would the public (or even the constitutional scholars) have understood the nuances of such an amendment? The key word is "commerce", which perhaps had a limited definition back when. But meanings change over time as circumstances change, as unforeseen events occur. Calling it a living Constitution does not demean it, as the Constitution is for the living who are entrusted to improve its application as circumstances change still more and there are more unforeseen events, for the benefit of future generations.

My old ConLaw Prof. Thomas Reed Powell must be laughing wherever old ConLaw Profs go.

What "nuance"? There's no nuance to the current "understanding" of the commerce clause": It's that Congress can regulate anything whatsoever, so long as it invokes the word "commerce", and the thing isn't abortion.

It wouldn't have been difficult to draft that as an amendment that everyone would have understood. It's merely that to state it clearly is to understand that the states would never have ratified the amendment.

@shaq: I agree with you that the constitution should adapt, but now we are left to argue that carrying a gun to school actually affects commerce.

I don't mind that FDR didn't ratify his expansive views back then, I suggest we do it now.

If it wouldn't have been so difficult, go back in time to the mid 1930s and give us a proposed amendment to the commerce clause for back then that everyone would have understood (and would now understand).

Perhaps with the benefit of hindsight, can you come up with an amendment that would ratify FDR's expansive views?

I would begin to say that the Federal Government can regulate interstate affairs instead of saying that it can regulate affairs that affect interstate commerce.

The interstate commerce case law now says that the federal government can in fact everything that has any to do with interstate effect, so why not put in in the constitution?

Then I would try to limit the power by excluding bills of attainder or actually regulations that seek to single out one state in particular.

That's a start, but specific amendatory language would be preferable. Your reference to regulating interstate affairs recalled Prof. Powell's discussion of the Mann Act of yesteryear: "Whoever knowingly transports any individual in interstate or foreign commerce ... with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined ... or imprisoned not more than five years, or both." Prof. Powell suggested that guilt depended upon whether such transport was for "pure pleasure or purely for pleasure."

Contrast this with a Senate bill passed this August making it a crime to take a minor across state lines to help her obtain an abortion without having to notify her parents. (I don't know if this has become law as yet.) How might an amended commerce clause along the lines you suggest be applied to such a law?

I have a tax law background and relied heavily upon the writings of the late Boris Bittker. I learned that late in his academic career he focused on the commerce clause, writing a treatise with that title. It makes for very good reading on the history of the commerce clause that may not be gleaned from opinions of Justices Thomas and Scalia. Unfortunately, the emphasis upon the commerce clause had somewhat diminished, with the focus more on protecting individual rights under the Bill of Rights. It has been in more recent years that there has been the attack to drive the commerce clause back to the stone age of the original meaning of commerce. Consider the importance of free markets internationally as well as domestically to the economies of nations. This suggests that great care be taken in amending the commerce clause.

"This suggests that great care be taken in amending the commerce clause."

But who's talking about amending it? The people who want to return it to the "stone age" are trying to undo an "amendment" which was achieved without compliance with Article V, and which is now, and always will be seen as illegitimate by people who really care about the distinction between the rule of law, and the rule of lawyers.

Seems a simple rule: If you want to change the Constitution, draft an amendment, and send it to the states to ratify or reject. It has the advantage of requiring the amendment to be clear, allowing for public debate, and being the procedure the Constitution actually calls for.

I was talking about amending it.

I'll try to respond to your post tomorrow, Shaq. 6 hours time difference isn't helping

A bit late due to the time change, but I am interested in something in the original post which has not been addressed. There is a whole class of historical events which can be termed 'policy failures'. Roughly, we might try to characterize these as events which caused significant loss due to either failures or limitations of the original policy or to later changes which undermined the effectiveness of an existing policy. I note that most of the policy catastrophes presented (savings and loan bailout, destruction of space shuttles, and levee failures - 9/11 remains poorly understood) are fundamentally of the second sort: changes in existing policy undermined the original intent or effectiveness, with catastrophic results.

It seems to me that even when good laws exist, and good policies have been developed and enacted, the problems most frequently arise due to subsequent political disagreement over funding, entitlement, administration, etc. The fact that such disagreements are often promulgated by the policies political foes might also be worth noting.

Some time ago, I read a book about the development of nuclear power and the challenge of nuclear safety. (Beyond Engineering, Robert Pool, 1999) As witnessed by 3 mile island, the nuclear industry had a long way to go. Similar (non-nuclear) disasters are continuing, such as the recent explosion and fire at a BP plant in Texas City. The reasons for these disasters, or at least the events leading up to them, have many similarities. They also have similarities with the governmental policy catastrophies. Pool makes the argument that it is possible to create a culture of safety that very effectively prevents these failures, and he presents several examples. (unfortunately, I loaned my copy to a friend, so I'm reconstructing from memory here) The two examples that spring to mind are the airline industry, which has a phenomenal safety record and some schools of medical practice, in which bad outcomes have been aggressively reduced.

Basically, there are some very concrete ways of preventing these technological disasters, but they require a culture which is fully aware of the challenge. There is a parallel with governance: In both, the challenge is to develop a system (or policy) which is stable, effective and safe, yet remains flexible in the face of future technological developments, economic and regulatory changes, etc.

So we have a parallel with the constitution, which is a (sparse) set of rules which attempts to lay out a system of governance that is effective and stable, yet responsive and flexible. The failures of governance cited are primarily failures of stability that occurred because a political agenda (deregulate, launch now!, spread the cost) was applied inappropriately to an existing (working) system. The Iraq war is a different type of failure in which the power of the executive has been hijacked for personal vendetta and profit with the complicity of congress under the cloak of a culture of fear and a (largely imagined and highly leveraged) external threat.

Is this a constitutional problem? or a problem with a possible constitutional resolution? As pointed out by others, the constitution was framed before any of the technology that makes our current communication possible was even on the most futuristic horizon. The development of highly sophistocated technology, its impact on culture, and vice versa should not be neglected. The speed of things is increased, and the ability to play the system, in an Enron sort of strategy, is greatly increased by this rapid inter-connected technology driven system.

Based on this, I would rewrite the constitution in a different sort of way: give presidential appointees long terms (>10 years). Ineffective and highly unpopular appointees can be removed by a 3/4 vote in congress AND a 2/3 vote of their employees. This would radically change the cabinet and reduce the influence of the politics du jour on the running of the country. This would also (hopefully) shift the presidential interest away from highly political appointments toward choices on the basis of professionalism. Since the appointee would be in a long-term position, their goal would be to run an effective agency, instead of to protect their political hides, and those of their superiors.

One of the fundamental means of avoiding catastrophe is to make absolutely sure that the person at the top is presented with a range of opinions. This did not occur during the 'group think' of the Bay of Pigs, and it has not occurred under this administration. Under the current system, 'group think' is all too frequent. The president is surrounded by his/her own appointees, usually of his/her own ideology. Making appointments for longer terms would alter this spectrum of advice, and limit the power of the presidency.

Whether or not this would have made the New Deal impossible, I'm not sure.

Suz, wouldn't your proposal have the effect of diminishing Presidential responsibility for the disaster? If a President were "stuck" with advisors s/he didn't want, s/he could always blame them for any missteps. At least under the current structure there's no doubt at all who's to blame.

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