Balkinization  

Tuesday, June 09, 2009

Is the glass half-empty or half-full?

Sandy Levinson

There is, of course, much to agree with Jack in his post immediately below: Some of what is terrible about the Senate--today's outrage is the "inability" of that august body to move forward with confirming the director of the Census because of a "hold" placed on the nomination by an unnamed (undoubtedly mad-dog Republican) senator--could be alleviated with changes in Senate rules. Both Jack and I agree, for example, that there is nothing "hardwired" about the filibuster or, even more so, the "hold," which is far more indefensible that the filibuster, which can at least claim a certain kind of Calhounian pedigree for people who are into "concurrent majoritarianism." The hold appeals only to lunatics who believe that "unanimous consent" offers a viable model for political decisionmaking. I have obviously written much over the past couple of years about the "constitutional dictatorship" attached to certain aspects of the presidency. Although the consequences are hardly as serious, the "dictatorship" of individual tin-horn senators to block legislation or confirmations is, in may ways, more outrageous. At least the President can claim, plausibly or not, to have been elected by "We the American People."

So we might describe this as the "half-full" view of constitutional possibility: We don't have to worry about anything that might require an actual constitutional amendment because the Constitution allows us exits from the the dysfunctionality now besetting us. I, of course, am a partisan of the "half-empty" school. I obviously believe that we should be pressing non-amendatory institutional reforms at every opportunity, but I also believe that we need to confront the extent to which we need to return to the very best legacy of the Framers, which was their willingness to confront the deficiencies of existing institutions, in their case the Articles of Confederation.

I wonder what Jack would be arguing if, for example, we were talking about the California constitution and its own contribution to the present crisis in that state. And, if he agrees with those who call for a new constitutional convention in California, is the difference between California and the US the fact that California has indeed gone over the cliff--i.e., it is facing the catastrophe that, empirically, seems to generate constitutional imagination and transformation--whereas we're still on the road, even if the car we're driving has slick tires and very bad brakes? (Mark Graber, incidentally, has written a witty though (to me) ultimately unconvincing critique of my "bad brakes" metaphor, in which he argues, altogether correctly, I concede, that it is often rational to keep driving what you know to be a defective car rather than paying an enormous price for a car (or for repairs) that will inevitably generate its own risks.) I would like to think that we might engage in our own constitutional reform prior to full-scale catastrophe, though history suggests that the odds are against any such optimism.

Comments:

But, of course, that the Articles of Confederation were broken was uncontraversially obvious within a matter of a few years. Whereas the current constitution has been functioning for better than two centuries, and it's 'broken' status is scarcely widely agreed upon.

I support a constitutional convention, not because I think the Constitution broken, but because so many work-arounds and dodges have accumulated that it's scarcely in force anymore. A 'reset' might result in a worse constitution, but perhaps one which, for the space of a few years, is actually obeyed.

To that end, can we agree that, if a convention is held, and a new constitution adopted, written by people still living, in the parlance of the era, 'living constitutionalism' will be utterly inappropriate for some space of years? That the damn thing should be enforced as written, not creatively 'interpreted' to evade it's plain meaning?

If we're not going to do that, there's hardly any point in writing a new one, because what gets written won't be observed anyway.
 

It's hard to argue that in California we've gotten the jump on the rest of the nation in constitutional reform. There's no serious movement I can see toward that. We may have gone off the cliff, but doing something about it remains stubbornly off the table.

Who knew an Austrian weightlifter was not the solution to all our problems?
 

Brett:

That the damn thing should be enforced as written, not creatively 'interpreted' to evade it's plain meaning?

If a law is respected 95+% of the time [unlike say, speeding ... and just how do you feel about speeding laws anyway, Brett, should we tighten the penalties, or just take 'em off the books?], isn't that a pretty good record?

But where do you see that the Constitution is being "creatively 'interpreted' to evade it's plain meaning"? Would this be in those (relatively few) instances that you think the interpretation is wrong? You could help us here by enumerating these transgressions that bother you so.

And what to you propose as strict "enforce[ment] as written"? That the courts just accede to your buddies' magnanimous wisdom and subsequent interpretation? Shall we also flog the apostates to set their minds straight? Don't I have a symmetrical claim that the outcome I prefer is in fact the proper "enforcement as written"? What to do, what to do....

Cheers,
 

Professor Levinson,

I agree with you on many counts about problems with the Constitution. What I am interested in hearing is how you think the process to replace it would work. I am not just talking about a Constitutional Convention, but how would we ensure that we ended up with something better and not worse?

The founding fathers were deeply divided over the issue of slavery, among other things, and the compromises they made to get the Constitution ratified exploded on us less than fourscore years later.

What are the chances that we could even get the Bill of Rights incorporated into a new Constitution? Assuming it did, would the authors be willing to specify what the 2nd Amendment really means? What about the 9th and 10th Amendments? The 9th is virtually ignored today, and the 10th seems to equate the rights of the people and the states. Considering that many states have much larger populations that the entire U.S. in 1787, I don’t feel that my state’s interests are necessarily aligned closely with mine.

There would certainly be those who would want to define marriage in a new Constitution, on both sides of the political spectrum, or to define a national language, or to specifically state whether abortion is legal or not. How would we avoid a constitutional convention getting bogged down in hot button issues such as these?

Finally, what would happen to all case law that is based on our current Constitution? Would people be allowed to relitigate should the new Constitution contradict the old?

It is one thing to tell us we need to go somewhere, but it’s not that helpful without directions or a road map.
 

What level of Constitutional crisis would there be if convincing evidence came to light that Barack Obama is NOT a "natural born" citizen, but he refused to resign and the Dems in Congress refused to impeach?
 

Hank Gillette:
what would happen to all case law that is based on our current Constitution? Would people be allowed to relitigate should the new Constitution contradict the old?

I may be misunderstanding your question, Hank, but it seems to me that this is not a serious problem. Even when individual laws are changed, past cases are not relitigated [under the new law], are they?

I do wonder what lind of principles have been used when consitutions of other nations were 'replaced' by substantially new ones? (I don't mean the change from no-constitution to a constitution.) Does the new const., itself, emobdy principles for protecting those who past litigants who 'won' under the old system?
Do new constitutions 'correct' what is now seen as state-imposed injustice? In other words, not turn the previous 'winners' into 'losers,' but, perhaps provide some kind of redress to the losers? I would think this would be likely if, e.g., the new const. specified some change in criminal sentencing policies such that old sentences would be unconst. under the new system.

As unpalatable as it would be to reverse the previous good legal fortune of the winners, it seems it would be worse to not address what the new system regards as injustice to the previous losers.
 

"Finally, what would happen to all case law that is based on our current Constitution?"

This could be a complex issue (the concern that splitting up the 9th Cir. would result in lack of clarity as the new circuit might not follow in the path of the old suggests why) but did we not deal with this already, at least on some level?

For instance, the 13/14th Amendments put forth great changes, changes that might even had been greater very quickly if the Supreme Court (5-4) did not interpret the 14A narrowly in 1873. Much case law became defunct, including chunks of Dred Scott v. Sandford.

State constitutions also have been changed over the years, at times significantly. And, our own federal Constitution replaced the Articles of Confederation, which resulted in some notable changes, e.g., regarding state debtor laws.

Also, Sandy Levinson is particularly concerned with structural aspects of the Constitution that are often not litigated anyway, such as the two senator rule.
 

Ugh. Please forgive my [many] typos.
 

"You could help us here by enumerating these transgressions that bother you so."

1. Reading the commerce clause grant of authority over a subset of actual commerce, as a grant of authority over matters either not commerce, or outside that subset.

2. The enrolled bill rule, which has substituted the Congressional leadership's naked assertion that the houses have passed a bill, for the requirement that they actually have done so.

3. The decision that you're not really entitled to a jury trial in all criminal cases, despite that "all" in black and white in the 6th amendment.

4. Replacement of the 5th amendment's "public use" standard with public "purpose", with the purpose frequently pretextual.

5. Interpretation of the "necessary and proper" clause as a grant of general legislative power, rather than the power to implement the restricted list of powers actually enumerated.

6. Rendering the bar on ex post facto laws an empty protection by interpreting it with absurd narrowness.

7. Rendering the bar on double jeopardy an empty protection by permitting multiple prosecutions on the same factual basis, and multiple jurisdictions.

This is not an exaustive list.
 

This comment has been removed by the author.
 

Brett:

Much as I thought:

[Arne]: But where do you see that the Constitution is being "creatively 'interpreted' to evade it's plain meaning"? Would this be in those (relatively few) instances that you think the interpretation is wrong? You could help us here by enumerating these transgressions that bother you so.

And Brett replies with a stock list of issues:

1. Reading the commerce clause grant of authority over a subset of actual commerce, as a grant of authority over matters either not commerce, or outside that subset.

The phrase is "interstate commerce". And as you know, there's a variety of opinion as to what that is (and cases coming up on either side). How is this a no-brainer for you?

2. The enrolled bill rule, which has substituted the Congressional leadership's naked assertion that the houses have passed a bill, for the requirement that they actually have done so.

How is this really a problem? It's procedural (not to mention Congress is the authority n its own rules). Do you have an instance where this has made a whit of difference?

3. The decision that you're not really entitled to a jury trial in all criminal cases, despite that "all" in black and white in the 6th amendment.

Are you talking federal cases? Or the definition of what is a "criminal" proceeding and what is not (where there's some difference of opinion)? What's your specific beef here?

4. Replacement of the 5th amendment's "public use" standard with public "purpose", with the purpose frequently pretextual.

It depends on what you mean by "public use". You have one definition; others may (and do) disagree.

5. Interpretation of the "necessary and proper" clause as a grant of general legislative power, rather than the power to implement the restricted list of powers actually enumerated.

Where is "necessary and proper" used to define an unlimited grant of "general legislative power"?

What is more interesting is the wide latitude given to "necessary and proper" even when the aims are not in dispute as to legitimacy. "Necessary and proper" means whatever Congress says is fit and needed, and no real test is made for rationality as long as the stated aims are good.

6. Rendering the bar on ex post facto laws an empty protection by interpreting it with absurd narrowness.

Once again, there's plenty of room for informed disagreement here. See comment on #1.

7. Rendering the bar on double jeopardy an empty protection by permitting multiple prosecutions on the same factual basis, and multiple jurisdictions.

Why do you think that the same acts can't constitute multiple crimes? And in different jurisdictions?

You left out one of my favourites:

1). Allowing searches without warrants.

[Arne]: And what to you propose as strict "enforce[ment] as written"? That the courts just accede to your buddies' magnanimous wisdom and subsequent interpretation? Shall we also flog the apostates to set their minds straight? Don't I have a symmetrical claim that the outcome I prefer is in fact the proper "enforcement as written"? What to do, what to do....

You really didn't address this last paragraph.

I understand you disagree with these things. But they're not as obvious as, say, sending three senators or electing a president who isn't 35 years of age (although I await the first person born on Feb. 29th running for office). In fact, they're areas of heavy dispute. Who elected you God so you can decide the unambiguous clear and simple meaning of these words?

Cheers,
 

And much as I expected.

"In fact, they're areas of heavy dispute."

Anything can be an area of heavy dispute. Doesn't require that the dispute be legitimate, just that there be somebody to dispute it.

That cuts both ways, but I think the evidence cuts mine. The only reason the expansive interpretation gets taken seriously is because it's convenient to the government which choses the judges. They don't get chosen if they laugh at it.
 

what would happen to all case law that is based on our current Constitution? Would people be allowed to relitigate should the new Constitution contradict the old?


I may be misunderstanding your question, Hank, but it seems to me that this is not a serious problem. Even when individual laws are changed, past cases are not relitigated [under the new law], are they?



I am not a lawyer, so I am having trouble coming up with a good example of my rather vague wondering, but let me try this.


Some people think that Congress has used the Interstate Commerce Clause to pass laws for beyond the reach of what was originally intended. There are a number of such laws in which Congress asserted the authority to regulate businesses based on a tenuous connection to interstate commerce.


Suppose a new Constitution had a commerce clause that strictly limited the authority of Congress to regulate interstate commerce. For example, they couldn’t regulate a restaurant simply because some of its food items came from out of state.


Assuming that scenerio, what would happen to the laws passed based on the interpretation of the Interstate Commerce Clause in our present Constitution? Would they be rendered null and void? Grandfathered in? Or would they be decided on a case by case basis when someone decided to challenge the old law as now being unconstitutional?
 

That's a fair question, there's a huge accumulation of federal legislation, and any new Constitution which reduced the reach of federal authority would invalidate wide swaths of it. But it's not like it would be feasible to just zero out the federal code, and start from a clean slate.

What would we do if we simply adopted an amendment, such as Randy Barnett's bill of federalism, that cut back federal power? Presumably, all those laws would be subject to litigation, and would be struck down as they came up for review.
 

Brett:

Anything can be an area of heavy dispute. Doesn't require that the dispute be legitimate, just that there be somebody to dispute it....

What's weird is that you can say this with a straight face, yet the conservatives are masters at denying scientifically verifiable facts (see, e.g. evolution and global climate change), where there ought not be room for alternative "interpretations". But on the issue of the unavoidable squishyness of language, you insist that there Is One And Only One Correct Interpretation (which amazingly enough dovetails quite nicely with your preferred political ideology).

As I said, we don't get conflicts over whether "two senators" means three or five ... because that is simply not (honestly) amenable to alternative interpretations.

I think the strength of your umbrage over interpretations that don't coincide with your own, as exemplified by that list, shows a disregard for the many instances where it is obvious that plain language does hold sway when the language is in fact plain, and a concern for those areas of less certan interpretation and dispute primarily where (at least some of the) decisions have not gone the way you want.

I think this is evident, and I will leave it at that.

Cheers,
 

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