Balkinization: Tragic Choices and Constitutional Reform

Comments:

I hardly think bullying the Supreme court into ceasing enforcement of constitutional limits to federal power constituted "judicial reform", but your general point still stands: There's only so much political energy out there.

A point I'd make is that constitutional reform, if it's approached as just a "liberal" cause, is going to be a complete non-starter, due to the need for multiple supermajorities to amend the Constitution. After all, that's why liberals got into this habit of 'living' constitutionalism in the first place: Because you couldn't achieve the supermajorities necessary to actually amend the Constitution to say what you wanted it to say.

It's only going to happen if it's framed in such a way that conservatives and liberals can make common cause. And I'm not sure that conservatives and liberals, for all that we both have constitutional complaints, actually have common concerns. Certainly, I don't think we'd all agree to Sandy's proposals.

# posted by

Brett : 7:24 PM

I don't think it's controversial to suggest that Constitutional change -- real change, that is, not tinkering with details -- comes only in times of crisis. Much as I agree with some of Prof. Levinson's ideas, Brett is right that there has to be a strong majority favoring the change. That will only happen when the facts demand that conclusion.

# posted by

Mark Field : 7:55 PM

I'm going to do an "independent" posting responding to Mark's general argument, but I want to emphasize that I agree with Brett that constitutional reform, if it's ever going to happen absolutely must "framed in such a way that conservatives and liberals can make common cause." For all of my ranting against the Bush Administration, I have emphasized, over and over, that we are talking about the future, though we obviously can learn lessons from the past.

As many "red"states start turning (at least) purple, it's unclear to me what self-proclaimed conservatives would be any fonder of the electoral college than similarly self-proclaimed liberals. Indeed, as I noted in the book, earlier attempts in the '70s and '80s to reform the electoral college were torpedoed first by small states and then by large-state Democrats who believed that the winner-take-all feature helped the Democratic Party. (Sometimes it does, sometimes it doesn't, as I think we can now all concede.)

Ditto on the presidential veto: I suspect that Republicans might be more hostile to vetoes by President Clinton or Obama, just as Democrats hate Bush vetoes. If we're talking about a reform that could not conceivably take affect before the 2012 election (and, realistically, assuming any of this is realisitic, until four or even eight years later), then nobody knows who would be helped or hurt and all of us could talk meaningfully about what we think would be best for the United States in the 21st century.

# posted by

Sandy Levinson : 10:42 AM

Our constitutional tradition reflects a certain conservativism that tempers against broad changes that do not retain the support of a broad base of the country. For this and other reasons, I have found some of SL's push for major constitutional changes problematic, and MG's caution here with its historical reflections is well expressed.

There is a broad coalition that oppose various things expressed on this blog, reflected by the likes of John Dean, Bruce Fein, and even Pat Buchanan sharing concerns of those from the left and the middle. We have more than enough to deal with that a majority, with the right influence and leadership, can and must handle to bite more than we can chew.

Brett's comments suggest another historical parallel. Many constitutional historians have pointed out there was no one "switch in time that saved nine," but actually a steady development of constitutional law that increased the understanding of "public interest" in the early 1900s up to the 1930s. This reflected a growing understanding, by a supermajority, of what the Constitution meant. One that involved a "living Constitution," if one wants to use that term, which in current years various authors note include conservative judges as well as liberal ones. This suggested the foolhardy nature of FDR forcing the issue. His nominations of justices alone did much of the work, the seeds already sown.

But, as leaders on both sides (Brennan/Rehnquist etc.) realize, you can accomplish much only if you don't bite more than you can chew. In fact, George Bush probably should have followed that lesson, and he would have a better legacy -- even if it would be in promotion of some things many here would oppose.

# posted by

Joe : 11:21 AM

brett writes: And I'm not sure that conservatives and liberals, for all that we both have constitutional complaints, actually have common concerns.

I think this is key. If liberals and conservatives were essentially agnostic about the basic rules of democracy and only cared about not taking a loss in any change, then things would be much easier to change. You could simply postdate reforms so they would come into effect beyond the horizon, where we wouldn't know who the new rules would benefit.

But the hypothetical there is not true. Liberals and conservatives actually do have different ideas about what set of rules and procedures will tend to produce the best results.

There is basically no chance that I will ever find a veto by Clinton or Obama to be as odious as Democrats find Bush's vetoes. Ditto for the electoral college: had a few precincts in Ohio gone the other way and John Kerry been elected in 2004 without the popular vote, I would not have been offended the way people on the other side were in 2000.

If anything I would like to see some sort of institutional change that reduced the popular mandate of the president, rather than increasing it, as would direct popular election. In these times where the temptation to authoritarianism is strong, we need a President that people hold to higher scrutiny, not someone with a mandate to be king for 4 years.

# posted by

JimM47 : 11:26 AM

Professor David Adamany in an essay written many years ago maintained that one consequence of the FDR's Court-packing plan of 1937 was that Roosevelt lost vital political capital that could have been spent on other liberal reforms. Most scholars agree that after the failed Court-packing plan and the failed purge of southern conservatives in 1938, the momentum for the Second New Deal was largely over, not to be revived until the 1960s.

Forget the "Second New Deal." The First New Deal would not have survived constitutional muster without expending that political capital bullying the Supreme Court. From FDR's perspective, if not arguably the country's, that was political capital well worth expending.

The New Deal was hardly a case of a job half done. FDR was one of the two most powerful Presidents in the 20th Century because he finished the job of convincing the country to embrace the concept of government run social insurance and entrenched the Dems as the majority party for a half century as the defender of that concept.

The New Left of the 60s offered another concept entirely - redistribution of money and opportunity to achieve equal results. In contrast to the New Deal, the People never bought into the New Left and the Dems lost their majority. This was simply a bridge too far.

Today, I would suggest that there is no leftist movement remotely comparable to the New Deal or the New Left. A viable political movement consists of a set of ideas which are popular enough to form a political majority capable of enacting the ideas into law. Neither exists on the left today. The Dems' ideas sound like GOP-lite and, even though the Dems nominally control Congress, the center right (GOP and Blue Dog Dems) hold a majority of seats.

Because there is no viable leftist movement to distract from, perhaps this might be just the time for attempting to focus the People's attention toward constitutional reform as Professor Levinson proposes. While I prefer the checks and balances of our current constitutional republic, Sandy's suggestions to streamline government tap into a large discontent among our evenly divided electorate which cannot seem to get all they want on policy even when they prevail in some close election.

# posted by

Bart DePalma : 2:37 PM

This is an extremely interesting discussion. I'm no attorney, but here is what I think I have gotten from this.

The system described here seems to me to be a combination of a rigid and very difficult to change base law (the Constitution) with flexibility provided within the boundaries set by the Constitution by both Stare Decisis from the Common Law and the concept of the "living Constitution". The base Constitutional law is immensely difficult to change, requiring a long term super majority.

Both the rigidity of the base Constitution and the flexibility to experiment provided by the concept of the "living Constitution" will have strong opponents.

Given my current fear of the Domionist religious right and their efforts to implement a theocracy in which law is based on their reading of the bible, I want an absolute prohibition of religion in government. I seriously doubt that a theocracy will ever obtain the kind of super majority that Constitutional amendments demand. But the intensity of a minority of voters can often sway the majority, so I really don't want a system of government that allows a regular majority to have absolute ability to change things.

Given that, I don't see that I am likely to support Sandy Levinson's proposals. They seem to me to give a mere majority too much power.

Am I wrong?

I'm not enough of a historian to really comment on the FDR effort to sway the Supreme court and it's legal and political effects on the New Deal. The question there is whether the effort derailed the New Deal, or if it was merely an event that occurred at the same time the New Deal changes were winding down, or (as a third possibility) if it was a necessary effort to ensure that the New Deal could survive intact. I suspect that the options are not mutually exclusive. All three could have been true at once. It sounds like it could make in interesting PhD dissertation. Or did the book cover that?

# posted by

Richard : 5:25 PM

I'm not enough of a historian to really comment on the FDR effort to sway the Supreme court and it's legal and political effects on the New Deal. The question there is whether the effort derailed the New Deal, or if it was merely an event that occurred at the same time the New Deal changes were winding down, or (as a third possibility) if it was a necessary effort to ensure that the New Deal could survive intact. I suspect that the options are not mutually exclusive. All three could have been true at once. It sounds like it could make in interesting PhD dissertation. Or did the book cover that?

You'll find historians and biographers on all sides of this issue. Jean Edward Smith's recent bio of FDR argues that the Court was already changing, so the attack on the Court was at best unnecessary and at worst a significant defeat for the New Deal.

# posted by

Mark Field : 6:57 PM

To the extent that the urge to "reform" the Constitution derives from originalism, perhaps a pause is appropriate, especially since the amendment procedure is quite difficult, at least for full "reform," whatever that may consist of. This morning I read and reread historian Joseph Ellis' Op-Ed in the Washington Post titled: "What Would Geoge Do?" No, silly, not George W. Bush, rather George Washington.

# posted by

Shag from Brookline : 7:39 PM

Hmm, I think the Churchill quote ran something like "If Hitler were to invade Hell, I'd find a few good words to say about the Devil."

I agree about splitting one's efforts. We've got someone in my city who's essentially running her peace group as a one-woman show. She's taken on a number of tasks and gets overwhelmed with the amount of work she sometimes assigns herself. AND she wants to take on anti-nuclear power activities! AND she wants to get the Sierra Club involved in the anti-war movement (Would anybody be impressed by that or does everyone see environmentalists as anti-war anyway?)!

Yeah, I once delivered pizza for a while and delivered one to a young woman who was carrying a baby, talking on her cell phone and accepting the pizza. She was so busy, she forgot to tip me!

# posted by

Rich Gardner : 9:47 PM

If we're doing soundbite/two sentence descriptions of major historical moments, one of the problems the New Left had was a laudable emphasis on civil rights for blacks. The political coalition of the New Deal splintered on questions of basic equal rights for blacks -- not "equal results" -- creating the Repub "southern strategy" that has worked pretty well for them through the present.

The New Left had other problems. Also, the south doesn't vote predominantly Republican solely because of racial issues, but if you look at the polling data, that's sadly a big chunk of it.

As for the Electoral College, I would favor getting rid of it, but my guess is that Repubs will oppose it because it gives disproportional weight to small states that are mostly Republican.

# posted by

Unknown : 11:37 AM

the season interferes with long chain reasonings. The two structures needing revision, or preferaly extinction are the current manner of electing to the U.S. Senate and the electoral college. Both anti-democratic, both founded on "state's rights" which are in turn founded on slavery and essentially racist discrimination. How many hayes tilden/bush/gores must happen. How many undemocratic filibusters. Safeguards, fine. But not these change preventing and change killing institutions.

# posted by

stevelaudig@gmail.com : 1:28 PM

In March 1947, the 80th Congress, with both chambers controled by the Republicans, passed the 22d Amendment to impose term limits upon the presidency. (It was ratified by the states in February 1951). I understand that the 22d amendment was popularly understood at the time to be a Republican rebuke of FDR and it was passed a mere two months after the start of the Congressional session. Can anyone comment on how the passage of this Amendment helped or hurt the Republicans hold on Congress? I understand that both chambers in the 79th and the 81st Congress were Democratic, and there was no census-based reapportionment during this span.

# posted by

Craig Roecks in NV : 7:03 PM

Also, Jean Edward Smith argues that FDR was not politically injured by proposing a constitutional amendment, but was injured by proposing a bad amendment, getting caught lying about why he wanted it, and by advocating for its adoption without first seeking input from the leadership of his own party in Congress. His biography of FDR makes this point clear, but he also wrote in a July 26, 2007 editorial in the NYT: “Roosevelt claimed the justices were too old to keep up with the workload, and urged that for every justice who reached the age of 70 and did not retire within six months, the president should be able to appoint a younger justice to help out. Six of the Supreme Court justices in 1937 were older than 70. But the court was not behind in its docket, and Roosevelt’s subterfuge was exposed. In the Senate, the president could muster only 20 supporters.”

By the way, Mr. Smith’s editorial concludes: “If the current five-man [Supreme Court] majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.”

# posted by

Craig Roecks in NV : 7:32 PM

Any number of people think that our too strong, too independent presidency is responsible for America's quite unnecessary "rise to globalism" in the last century.

More think that it, coupled with an election process controlled by corporations and the rich, guarantees subservience of our foreign policy to the interests of the military industrial complex, itself allied to Zionism and to Wall Street's ambitions to build a unified world of global, bare-knuckle capitalism.

The only way to disempower the MIC, start America on the path to withdrawal from globalism, and return the government to prioritization of the well being of the American people is to take down the presidency.

That alone is would not be enough. But that would be necessary.

Not that there's really any chance, though. Eh?

# posted by

Anonymous : 7:17 AM

To Gaius Sempronius Gracchus:

Apparently China and Europe have already replaced the U.S. as the "engine of international growth." The coming recession is going to accentuate this.

The general weakness of the dollar together with American efforts to change regimes in Iran and Venezuela have led to serious discussions about OPEC replacing the Petro-dollar with the Euro or a basked of currencies. Since the need for dollars to buy oil denominated in dollars is a major prop under the value of the dollar, such a move would leave the international value of the dollar in free-fall. That freefall is the only reason OPEC has not already moved out of the petrodollar - the effect of its collapse on their dollar-denominated investments.

Any OPEC nation not presently hedging against the fall of the dollar is run by fools, and not many OPEC nations are run by fools.

If the dollar tanks, will American multinational still have any power internationally? And as the price of oil in dollars escalates, can America afford to prop up the American multinationals with military force? Just training the American military is a major cause of oil consumption, let alone combat operations.

Much of the power of the Presidency that avoids the checks and balances is in his position as Commander in Chief. If he can't afford to conduct military adventures like the invasion of Iraq, his wings are sharply clipped.

I think that Bush's excessive and misguided military adventures together with the conservative mismanagement of the American economy is all coming home to roost in the near future.

The recession has already started, and it will not have the fabled "Soft Landing." It will be longer and harder than the one in the early 80's. As international economic power shifts away from America the power of the Presidency declines. I think we are pretty much out of the globalism business for the foreseeable future. Mostly we are generally going to have to do what the financial markets already are trying to do - first, recognize just how bad the problems at home are, then take stock of what has to be done to recover, (those two items will take a while) and then finally start rebuilding to a position of international economic competitiveness. Since a lot of this will require shifting power from corporations to labor and to the American people, the conservatives will fight all of this all the way. But the conservatives have had their run and proven that they are failures.

Strip the executive orders that built up during the Cold War, and there isn't nearly as much Presidential power as it looks right now. The coming economic problems will blow the fantasy of a global war on terrorism away. We can no longer afford a fake war against a few bandits in some foreign mountains.

So I really doubt that much needs to be done to remove the excess power from corporations and from the President to improve America. Bush and Cheney have don't all the heavy lifting of demonstrating how necessary those actions are, and the economy is going to make life difficult so that simple survival is going to replace greed as a primary motivating force in the nation for the next few years, much as the Depression did.

# posted by

Richard : 1:56 PM

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# posted by

Unknown : 12:32 PM