Balkinization  

Sunday, September 14, 2008

Faux Originalism and "Constitution Day"

Sandy Levinson

Many originalists claim to feel bound not only by the text of the Constitution (which would make them only textualists, but also by the values, aims, and aspirations of the Founders). But surely one of the central values of the Founders is that no one like Sarah Palin would ever be a candidate for the presidency (and not only because she is a woman, a piece of bigotry that would also, of course, extend for other reasons to Barack Obama). Rather, she is basically uneducated, inexperienced, and incurious about the world at large. She is no Abligail Adams or Mercy Warren, let alone James Madison or John Adams.

I have many times over the past two years, since publishing my book Our Undemocratic Constitution, been reminded, sometimes with a tone of withering condescension that ours is a "republic" and not a "democracy," and we should keep it that way. There is, of course, some truth to that, especially if by "republican" one means a concern for public values instead of partisan interests, deemed "factions" in the 10th Federalist. Madison obviously saw no way to get read of factions, but he did believe, naively, that one might tame them through a system of representative government that would try to assure "virtuous" leaders.

Madison's vision, of course, collapsed very quickly. Some would say 1800, though this depends on whether one shares Hamilton's view that Burr was out-and-out unfit to be president. Others would say 1828, with the election of Andrew Jackson. I'd be more tempted to go with 1840, when William Henry Harrison, who ran under the famous slogan, Tippacanoe and Tyler too, picked the egregious John Tyler for no other reason than supplying "electoral balance," even though he had no apparent qualifications for the presidency (unlike every earlier VP, including, one might well argue, Burr) and was a disaster as President. What is striking is that we no longer even both to lament the decline of "republican" values; instead, too many of us have become little Karl Roves and Lee Atwaters, luxuriating in the "cleverness" of political operatives who indeed care only about partisan political success and nothing else.

In any event, there is something passing strange about (some) contemporary "originalists" clutching the Founders to their bosom at the same time they celebrate John McCain's ostensible "sagacity" in choosing the patently unqualified Sarah Palin because it might provide him an electoral boost. This is not to deny the accuracy of the analysis; it is only to say that no member of the Founding Generation would recognize such a motive (and character) as being the reason they gave for establishing a new Constitution dedicated to maintaining a "Republican Form of Government."

Benjamin Franklin famously said that we were given a republic and the question was whether we could "keep it." The answer is clear. Not only do we not have anything we should be willing to call a 21st century democracy; we also don't have anything we should be willing to call a "republic." Something to think about as we prepare to "celebrate" Constitution Day on Wednesday..... Whatever it is that (some of us) celebrate, it has almost nothing to do with 1787-88, for good (the substantial overcoming of sexism and racism) and for ill (fill in the blank with one's favorite critique).


Comments:

should any of the founding fathers return to run again they would be branded as elitist.
 

garth:

Many of the Founders were elitists who distrusted the People with whom they entrusted the vote. Jackson and Lincoln made it acceptable to elect a President from the People rather than only from the elites.

Somehow our "disfunctional" Republic survived and prospered after electing common rabble like Jackson and Lincoln and I believe will likewise do just fine if it elects either Obama as President or Palin as VP.

Sandy, if you want to live under a parliamentary system where the party bosses choose the candidates "qualified" for PM, I suggest you seek a position with Oxford. There is not a chance in hell the People of the United States would agree to be ruled under such a system.
 

Any people who would acquiesce in a government of fascist criminals such as Dirty Dick Cheney and Curious George Bush would clearly not be shy about accepting any form of government whatever.

Equally, malicious lying hypocrites like Bart De Palma aren't shy about describing fascist gangsters as "repubicans" who believe in "democracy".

An old story.
 

Well, the virtuous leaders thing hasn't panned out, but we are free of the sort of factional, single-issue party politics that plagues parliamentary democracies, particularly those that use proportional representation. Of course, maybe that sort of politics is to be preferred to what we have now; I'm just saying that Madison did succeed in realizing some of his aims.
 

Charles:

Please tell me exactly why we in the GOP would not whole heartedly support the democratic election of our country's representatives? Unless you have been hiding under a rock for the past generation, democracy works pretty well for the GOP.

You might as well prepare yourself now. Those silly People of the United States appear once again ready to cast a majority or at least a plurality of their ballots to democratically choose the GOP presidential ticket.

Seriously, instead of attacking the Republic for your problems getting elected, maybe you folks on the left might want to reconsider the product you are trying unsuccessfully to sell.

BTW, save the Nazi epithets for someone who cares.
 

Ok, I myself am curious: How did you determine that Palin is "incurious about the world at large."? Amazon leak her reading habits? Or maybe you just didn't like her college major?
 

I didn't call you a Nazi Bart, I called you what you are: a fascist.
 

To get back to the topic, sort of, there's one unfortunate consequence of American adulation for the Constitution that bears more thought. I suggest that it makes Americans generally unqualified to advise on constitutional reform in other countries where such advice is influential. Both Bosnia and Iraq have been left with unworkable constitutions. The Kosovo one is OK, but then Americans didn't write it. Reforming countries would be better off learning from democracies with more recent and less sacralized constitutions like France and Germany. Even the deeply conservative Swiss, who maintain the oldest successful republic in the world, respect their constitution as a well-designed piece of political machinery, not the symbol of national identity.
 

In some measure, the republicness of our governmental artifice may be attributable to the challenging sort of young adult education some founders enjoyed, at Boston Latin. I visited that storied public school's site knowing one attendee had been a second cousin to one of the US's early presidents. The school's webpage has a slideshow of dignitaries who were students, including Ben Franklin, Samuel Adams, and others. One supposes, as a teen it is best to study the books at the school one's parents have paid to teach you, be those Latin or Greek tomes, or galvanized political tracts. I had a sense that modern "conservatives" might launch into denial if a contemporary historian were to extoll the declamation of the likes of Samuel Adams, depicting him as an unpatriotic rablerousing sort, a misfit who botched his profession in collecting state revenues, and even struggled mightily with managing an inherited factory which produced beer. These modern "conservatives" I imagine decrying Samuel Adams' written work as egregiously outside of acceptable bounds of traditional original intent, lobbying, as he did, for binding the contentious first I-X admendments to the less disputed constitution proper as a "Bill of Rights". In sum, if questioned, certainly some modern "conservatives" would prefer we believe Samuel Adams and his milieu had not existed at all, in fact, the revisionist history deleting most of his work would be a worthwhile endeavor if more "conservatism" inspired administrations accede to the white house.

Then I realized, how difficult it is post ipso facto to obliterate or diminish a contribution of the proportions of Samuel Adams'. Much more difficult, in fact, than simply subcontracting to an offsite server the caretaking and oversight of executive branch emails, which somehow might be erased, or lost, or the backup tapes overwritten.

In this reverie, Samuel Adams continues to exist, for now, and for the republic, if we take care to preserve it.
 

Well I think the clearest thing in all of this is that the people of this country are more confused than anything else, the "elites" included.

It just blows my mind, even though I've been aware of it since I was like 10.
 

Ok, I myself am curious: How did you determine that Palin is "incurious about the world at large."? Amazon leak her reading habits? Or maybe you just didn't like her college major?

I'm thinking he deduced it from her massive ignorance. If she read a non-local newspaper each morning, she'd have vastly better answers to Gibson's questions. For instance, she'd know that you're not going to make any real difference in the size of the federal budget by "finding efficiencies." Not to be sexist, but that whole exchange made her sound like a 50s home ec teacher. Or Suze Orman. Only really, really ignorant people think you can cut spending by any significant amount simply by rooting out the $640 toilet seats, useless bridges, studies of crab mating habits, and the like.
 

Please tell me exactly why we in the GOP would not whole heartedly support the democratic election of our country's representatives? Unless you have been hiding under a rock for the past generation, democracy works pretty well for the GOP.

As does being on shooting terms with Supreme court justices and making your state campaign chairman the person who oversees voting in that battleground state.

You might as well prepare yourself now. Those silly People of the United States appear once again ready to cast a majority or at least a plurality of their ballots to democratically choose the GOP presidential ticket.

Remind us how your 2006 congressional prediction turned out again.

Seriously, instead of attacking the Republic for your problems getting elected, maybe you folks on the left might want to reconsider the product you are trying unsuccessfully to sell.

Actually, the center right Democrats need to get better salesmanship to overcome the election skills of the right wing Republicans. Once they tie marketing in to products that are supported by the majority of the nation, it will be a long time before the Republicans or their successor parties get back in power, probably after they go back to (actual) small government libertarian values.
 

"In any event, there is something passing strange about (some) contemporary 'originalists' clutching the Founders to their bosom at the same time they celebrate John McCain's ostensible 'sagacity' in choosing the patently unqualified Sarah Palin because it might provide him an electoral boost. This is not to deny the accuracy of the analysis; it is only to say that no member of the Founding Generation would recognize such a motive (and character) as being the reason they gave for establishing a new Constitution dedicated to maintaining a 'Republican Form of Government.'"

As so frequently, it all depends on what we mean by "originalism." For a textualist variant, rather than one that emphasizes either the Founders' ultimate goals and purposes or how they would resolve particular controversies, see here.
 

"Bart" DePalma:

Please tell me exactly why we in the GOP would not whole heartedly support the democratic election of our country's representatives?....

Because then they lose?

... Unless you have been hiding under a rock for the past generation, democracy works pretty well for the GOP.

Which explains Dubya v. Gore and the many other attempts by the Rethuglicans to deny people the right to vote. Here's the latest. But that's just part of the big picture; Rethuglicans are engaging in "caging", voter registration "challenges", harassment, intimidation, and whatever other dirty tricks they can think of ... because the stakes for the Rethuglicans are a matter of life and death ... or at the very least 10 to 20 with no time off for good behaviour.

Cheers,
 

Now Arne (and Fraud Guy), let's not get too optimistic. Our economy's in pretty scary straits, and Obama's promising to fix it, along with healthcare, the rising seas, and everything else. What's the chance that all pans out? Should he get elected, I'd say there's about a 50/50 chance he's a one-term President and a 75/25 chance the party suffers serious setbacks in 2010.
 

This comment has been removed by the author.
 

Tray:

Now Arne (and Fraud Guy), let's not get too optimistic. Our economy's in pretty scary straits, and Obama's promising to fix it, along with healthcare, the rising seas, and everything else. What's the chance that all pans out? Should he get elected, I'd say there's about a 50/50 chance he's a one-term President and a 75/25 chance the party suffers serious setbacks in 2010.

Well, I agree that whoever takes over has to deal with what economist Atrios refers to as the "Big Sh*tpile" left by the corporo-Republican rape of the country.

And it won't be pretty.

But what does that have to do with deciding on who will get this daunting task via democratic means?

(I'd note, in keeping with Prof. Levinson's themes, that many of the anti-democratic Rethuglican anti-voting tactics are enabled by the peculiar methods that we choose to select the preznit; namely, that individual states as "winner-take-all" contests magnifies the effect of focused voter-suppression tactics; whereas a few thousand votes in 50 million is barely noise, it can well be quite significant when those thousand votes are concentrated in very close "battleground" states).

Cheers,
 

But what does that have to do with deciding on who will get this daunting task via democratic means?

Nothing - I'm just saying, dreams of the permanent liberal majority are very premature. Though I do agree that the center of American public opinion is a lot farther to the left than it was 10-15 years ago.
 

tray,

I was arguing that the Democratic party is center-right, not left (liberal), by their actions. Although I do prefer a more liberal electorate (and government), I am not holding my breath at the moment.

I am also a little less sanguine about the Democrats' chances, absent a more effective plan and sales job on their part, and I would guess there's about a 10% chance that Obama doesn't get a chance to finish his first term, with Biden possibly pulling a Johnson.
 

I don't understand. What would "pulling a Johnson" consist of?
 

fraud guy said...

I was arguing that the Democratic party is center-right, not left (liberal), by their actions. Although I do prefer a more liberal electorate (and government), I am not holding my breath at the moment.

A majority of the Dems are left, not center-right.

However, the Dems cannot muster close to a left majority of the overall vote because this is indeed a center-right country. This fact of life is why the Dems only managed a nominal congressional majority through the election of center-right Blue Dogs and why Obama has been furiously tacking to the right during the general elections while running from the label of liberal like a scalded dog.

This is also why I posted here last spring that predictions of a Reaganesque realignment election to the Dem left were pipe dreams. The only remaining question is whether Obama ala Cinton can convince voters that he is also center-right and pull a come from behind victory in a little over a month. His last real chances are the debates starting next week.
 

Baghdad, how do you explain why McSame is running away from rightwingnuts like you even faster than Obama is running away from the left?
 

If the Founders were so wise, all-knowing, and all-foreseeing, then how come they didn't write the Constitution in a way that would have prevented the Civil War?

I think our presidential system is screwed up. It is a winner-take-all system. Many politicians spend many months campaigning for a position that only one can attain. I much prefer the system in many foreign countries whereby the CEO (president, prime minister, premier, or whatever) is chosen by the legislature, can be removed at any time by a vote of no confidence, and can resign for personal reasons. I am tired of hearing how wonderful our Constitution is. Our system of government is so screwed up that it can be fixed only by another constitutional convention.
 

tray: I don't understand. What would "pulling a Johnson" consist of?

I think it requires putting on a mantle of some sort, whether or not it fits its wearer.
 

Bart:

A majority of the Dems are left, not center-right.

Not the candidates according to this general mapping of positions.

However, the Dems cannot muster close to a left majority of the overall vote because this is indeed a center-right country.

I am looking for a more current version of this, or this, but I recall more recent polls showing the electorate a little more in favor of left leaning positions than you seem to imply.

Until of course, someone honorable tries to scare the snot out of them for political gain.
 

I think it requires putting on a mantle of some sort, whether or not it fits its wearer.

Two things: why would Obama fail to finish his term?

If you're talking Lyndon Johnson, I'd argue the mantle fit him better than it did his predecessor. Of course if you mean Andrew, that's another matter.
 

tray:

why would Obama fail to finish his term?


Basic stats based on a small sample.

We have had 44* presidents.

Out of that number:

4 have been assassinated: Lincoln, Garfield, McKinley, and Kennedy.

3 died of natural causes: Harrison, Taylor, Roosevelt.

1 resigned: Nixon.

In addition, there were failed assassination attempts against 4 others: Jackson, Roosevelt, Ford, Reagan.

2 were arguably incapacitated or mentally incompetent by the end of their terms: Wilson, Reagan.

2 others were impeached, but their terms (if not their effectiveness) survived the attempt: Johnson, Clinton.

So basically, 8 of the 44* didn't finish their terms. I doubt that Obama would have the actuarial issue that McCain does (which I consider separately, below), which eliminates 3 of the historical "chances" he won't finish his term.

The impeachment/resignation issue is a political crapshoot, and is only 1 for 3, even when Congressional majorities and supermajorities oppose the President and his policies. This route is also unlikely to bring short his Presidency.

Finally, we have the worst case. At a base, 9.3% of our prior Presidents left office via this route, with a 50% success rate when attempted, which you can compare to a coin flip. With the eliminationist rhetoric in the back pews of the opposition party (as opposed to the usual mudslinging), it might be more likely to be attempted, and I wouldn't want those odds of survival in such a situation.

Back to McCain:

Yes, only 3 of 44 died of natural causes, but consider the following:

He starts with a 1 in 7 chance (via basic age/actuarial tables) of not surviving the next four years.

Add in the wear and tear that all presidents go through (even George "time off" Bush).

Add in his known health issues.

Add in the reduced survival time of POWs.

Stir and mix, and I would give him less than a 50% chance of surviving a theoretical first term. Actually, my best guess is that he will go the Stephen Douglas route after the election.

Because of these (predictions? WAGs? hunches) on my part, I considered the VP selection a top issue this campaign, and one candidate won that issue hands down.

On mantling, I was thinking the former, not the latter, but I've read differing analyses that made him seem unlikely to fulfill his predecessor's rhetoric on many items, even though he did (some for ill, too).

(*43 if you count Cleveland once)
 

>>>>> 3 died of natural causes: Harrison, Taylor, Roosevelt. <<<<<<

You forgot about Harding.

>>>>> 2 were arguably incapacitated or mentally incompetent by the end of their terms: Wilson, Reagan. <<<<<

Wilson was seriously incapacitated. All I heard about Reagan was that he would sometimes doze off during meetings -- he wasn't diagnosed as having Alzheimer's disease until 1994, several years after he left office.

Also, you should distinguish between the two Roosevelts, FDR and Teddy, the two Johnsons, LBJ and Andrew, and the two Harrisons, William Henry and Benjamin.

One of the big problems with our presidential system is that too much depends on the president being able to perform his/her duties.
 

Larry Farfarman,

Sorry, forgot Harding, but that notionally makes the McCain possibility worse.

Re: Reagan, I have heard arguments on both sides as to the time of onset for his symptoms, thus my "arguably" modifier. If I wanted to really argue mentally incompetent...but I won't go there today.
 

On assassinations, though, you'll notice that we've only had one President killed in the past 107 years and none in the past 45. The probability of getting shot's gone way down, what with vastly improved protection. And he isn't dying of natural causes. So I'd go with 2%.
 

tray,

I hope that we don't have to find out which of us is correct on chances.
 

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