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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Another magazine breaks my heart
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Friday, January 02, 2009
Another magazine breaks my heart
Sandy Levinson
Today's mail brought me the current issue of The Nation, a journal I have long admired, subscribed to, and, indeed, written for. So imagine my disappointment when its issue, devoted to "Ideas for a new progressive era," contained nary a mention of the need for any reflection at all on the adequacy of our "hard-wired" Constitution to the 21st century. To be sure, there is an interesting article by Aliz Huq, "Dismantling the Imperial Presidency," that concludes with the necessity for "restoring America's tarnished Constitution." As one might expect, though, all this refers to is the Bush Administration's depredations and the hopes that Obama will be a less imperial president. It apparently doesn't occur to Huq that more fundamental controls on would-be imperial presidents might include, for example, the ability to vote no confidence instead of having to engage in frustrating and fruitless debates about whether certain actions meet the presumed standards for impeachment set out in the 1787 Constitution. (And, frankly, I'm not sure that I agree with the article's premise that president's should never view themselves as possessing what Locke called "prerogative power." Perhaps what we should be doing is having a far more serious discussion than we've had up to now about how to design a least-dangerous form of "emergency governance" or even what Clinton Rossiter, following Machiavelli, called "constitutional dictatorship." An unfortunate reality of the Bush Administration is that its mixture of almost-fascist authoritarianism and demonstrated incompetence has made next to impossible a serious discussion of what kinds of "exceptional" powers we want to place in the hands of executives, whether we're speaking of the President or the head of the Federal Reserve Board.
Comments:
Sandy:
I don't mean this to be snarky or snide at all, but when you are disappointed that "there is not even the semblance of an intelligent public debate on such issues," does it occur to you that you're arguing for a position that people just aren't willing to accept? That's not to say that you're wrong. I don't know. But I think what is fairly clear is that you've adopted views and accepted positions that most people just aren't going to, at least not in the immediate future. Maybe you're just ahead of your time.
"The Nation and The American Prospect are probably at somewhat different places along the political spectrum, but both, alas, seem to share an absolutely stunning complacence with regard even to the possibility that 21st century "progressives" might emulate their 20th century predecessors and ask serious questions about what might need changing in the Constitution."
I think the reason your average lefty these days is more concerned with correcting the abuses of Bush rather than experimenting with new tweaks to the Constitution is because what is the point of tweaking the Constitution if the president doesn't feel bound by it anyway? Your no confidence idea may be a nice one but the practical odds of passage seem slim at best. Rome is burning and there are important and achievable things that Obama should do and that need to be discussed to counteract the precedents that Bush has established. Those precedents are a real and present danger that should be at the top of everyone's agenda.
I second The Fool and am curious how you on one hand think the Senate is perverting the Constitution by refusing to seat Burris, but then think the path to constitutional reform is to amend it (sadly, requiring a populance who is not debating things intelligently) so apparently they can pervert new text.
Clearly, we aren't there yet. We have to have a credible gov't first, before hoping for change. Again, what fool said. In fact, ditto 'monkey's point. It seems you are upset the people at large aren't ready. This underlines mere constitutional text doesn't matter. The New Deal underlines that. A no confidence vote when a majority (again, I assume you would have a supermajority requirement here) supports many of the things Bush did for so long, at least enough to keep him in power (he was re-elected in 2004 after all), is a hard sell. The Nichols point is unfair. If addressing an emergency provision, I think he would use different criteria. At least, one would have to ask him about that issue. It doesn't surprise, when people don't want to write wills, that such an emergency situation is not something we seriously debate. Though a few are doing just that.
I used to subscribe to The Nation, but too often it could have been called A Few Square Blocks In Manhattan.
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