Balkinization  

Wednesday, September 30, 2009

Looking to state constitutions

Sandy Levinson

Too many members of the American legal academy--and, for that matter, political scientists who study "constitutionalism"--are almost willfully ignorant of what John J. Dinan calls The American State Constitutional Tradition. His excellent book has just been published in paperback by the University of Kansas Press, with a foreword by yours truly. Having assigned it in a course I'm giving this semester at Harvard College, and will give next semester at the University of Texas Law School, I can attest to its pedagogical excellence. He analyzes various debates held at a multitude of state constitutional conventions and thus provides an easy way for students immediately to appreciate what can be said pro and con about, say, bicameralism, various forms of gubernatorial veto, direct democracy, or how to select judges, among other things. My own view is that everyone should read Dinan's book, but it is especially important for academics to do so.

The debates about the Constitution in 2020 (or 2030, or whenever) are still unfortunately fixated almost exclusively on the United States Constitution, and mavens in comparative constitutional law are most likely to look abroad, which allows people like Justice Scalia to accuse them of being unAmerican. It is literally incoherent to say that one is unAmerican in looking to American state constitutions for potential wisdom. One might begin with Nebraska's wise (and "progressive") decision to abolish its Senate in 1934! Or consider the fact that the overwhelming number of states are distinctly "non-unitary" in organizing the executive branch, with separately elected governors and attorneys general (for starters). This provides a level of oversight of potential executive overreach that certainly does not obtain, by and large, at the national level of government, especially, of course, when the AG comes from a different political party. With regard to "progressive constitutionalists," it is surely relevant that many state constitutions guarantee "positive rights," the most important one being education (and, consequently, one can find a lot of interesting data on whether such guarantees are simply "parchment promises" or in fact serve as the basis for either strong judicial enforcement or create a "constitutional culture" that leads legislatures to behave responsibly).

Most interesting, from my perspective, is that 14 state constitutions require that the electorate be offered the opportunity, at stated intervals, to vote yea or nay on whether to have a new constitutional convention. This is only one of the many ways that state constitutions may be closer to the best part of the American political tradition in that they actually express some actual trust in the ability of "we the people" to govern ourselves. I continue to believe that contemporary American "progressivism" will flail in the wilderness until its adherents break free of their de facto Hamiltonian fear of "the people" and actually emulate some of the right-wing populists who have no such fears. And if we emulated many state constitutions by having a legislative initiate and referendum, we wouldn't be at the mercy of the Baucuses and the idiotic filibuster rule that makes meaningful legislation near impossible. Isn't it ironic that the i&r in California was supported by early 20th century "progressives"? There are problems with i&r, to be sure, but wouldn't it be interesting to see what might happen in our truly dreadful Senate if a national movement developed that threatened to strip them of their power to kill any and all legislation they don't like, whatever its degree of support from the House of Representatives or the White House? A more "moderate" approach, drawn from many of the other countries around the world that have bicameral systems, would be to have some procedure to break deadlocks between the two houses. We have the worst of all bicameral systems, where a totally malapportioned Senate that fails any 21st century test of "one person/one vote" is also able to kill legislation with no recourse. As Bob Dole might say, where is the rage? Or is there a consensus that we're simply stuck, in 2020, 2030, and thereafter, with the institutions we have, so that there is literally no point even in pointing out their relevance to actually being able to achieve what "progressives" legitimately want.

Although I'm allowing the posting of options, I truly hope that those of you who aren't "progressives" will refrain from bothering to comment how much you admire the ability to the Senate to block legislation. I'm sure you do. That can be taken as a given, and it needs no further expression. What interests me is why self-identified "progressives" would be equally accepting of the institutional status quo. Given that most "progressives" necessarily live in states with constitutions quite different from the U.S. Constitution, I'm curious if they would necessarily trade in their state constitutions for the national one. If they actually like their state constitutions, then why not look to them as potential templates for reform of the national version?

Comments:

After noting (without naming them) that "There are problems with i&r, to be sure," it might help to discuss said problems. Residents of California, for instance, might have something to add there.

Also, I'm unsure if disagreement with various of your ideas means "progressives" are "equally accepting of the institutional status quo," though perhaps some fear what would have happened if the Republican Congress in the Bush years had even more smooth sailing.

Or, they are aware that any changes will both be hard to come by (even if ideal) and have unclear results. Though I'm game for some change of the Senate, e.g., both matters factor in when I think our efforts should mostly be elsewhere other than tilting at windmills. Not that the actions of one state convinces me unicameralism is the way to go.

The state constitution matter is of interest -- both homosexuals and gun owners can tell you that. Various states would be excellent case studies.
 

I have been thinking recently that conservatism [in the theoretical sense] resonates more with many of us progressives than we admit. Especially as we age, and as we become aware of the dangers of unforseen consequences, we tend to prefer the devil we know to the one we don't know. When the change entertained is of the magnitude of altering our political structure on a grand scale, even progressives might become cautious.

On the other hand, changing some of the historically contingent rules of congressional procedure is nowhere near as daunting and would certainly loosen the log-jam in effective legislation.
 

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Sandy:

I continue to believe that contemporary American "progressivism" will flail in the wilderness until its adherents break free of their de facto Hamiltonian fear of "the people" and actually emulate some of the right-wing populists who have no such fears. And if we emulated many state constitutions by having a legislative initiate and referendum, we wouldn't be at the mercy of the Baucuses and the idiotic filibuster rule that makes meaningful legislation near impossible.

Sandy, I am a bit confused. Several weeks back, didn't you argue that I&R is part of what made the CA constitution unworkable?

In any case, as one of those "right-wing populists," I would love to bypass Congress with a series of initiatives to crank back the spigot to the federal pig trough. An initiative prohibiting an increase in taxes or the nation debt without a vote of the People would be a great start. In this era of 1-2 Trillion dollar budgets are far as the eye can see, that one would probably pass with a near super majority of voters.

Be careful what you wish for. In a center right country, the left has a great deal to fear from allowing the People an actual voice in what is supposed to be their government - especially when they are pissed off at government profligacy as they are today.
 

Yes, the initiative and referendum has indeed contributed to the dysfunctionality of California, but it is in large part because it also makes it impossible for the legislature actually to pass a budget, thanks to the 2/3 requirement. Many other states have i&r without becoming so pathologically dysfunctional as California.

And, for what it's worth, there are other techniques of "direct democracy," such as the use of lottery selection of decision-makers, that would go far to eliminate some of the deficiencies of money-driven, ad-distorting campaigns that take advantage of the fact that relatively few voters will actually take time to become genuinely informed about the implications of given proposals.
 

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Sandy closes with this:

"Given that most 'progressives' necessarily live in states with constitutions quite different from the U.S. Constitution, I'm curious if they would necessarily trade in their state constitutions for the national one. If they actually like their state constitutions, then why not look to them as potential templates for reform of the national version?"

Here in MA we have a constitution that preceded the US Constitution. Some say the latter was modeled upon the former. But from the standpoint of readability, the US Constitution is far better. In fact, I would say that the US Constitution is more readable than just about all of the state constitutions that preceded it. Readability is important for "We the People" to understand a constitution without a constitutional lawyer alongside to explain it.

As for performance of governance under each (MA and US), I would not look to the MA constitution for reform of the US Constitution. Perhaps there may be some state constitutions adopted (or significantly revised) since the US Constitution that might serve as a guide for progressives in considering improvements in the US Constitution. Maybe Dinan's book can be helpful in this regard. But my concern is that the ideologies today are so strongly entrenched compared to those of the framers (considering the growth in size and technology), that the end product of a constitutional convention might look more like a code than a constitution, especially with a history of 200+ years to be considered, some of them tumultuous. Also, would the new framers have greater foresight than the original framers? (The new framers might even address the role of originalism in interpreting the resulting constitution/code, n'est pas?)
 

"Readability is important for "We the People" to understand a constitution without a constitutional lawyer alongside to explain it."

Of course, along with that comes the risk that "We the People" will notice that the constitutional lawyers are BSing us. A good deal of the work of today's constitutional lawyers consists of rationalizing quite blatant violations.
 

" A good deal of the work of today's constitutional lawyers consists of rationalizing quite blatant violations."

I don't know if we can agree on what may be the "quite blatant violations" but I've been thinking lately about a comparison of the efforts of particles physicists in their use of accelerators with the efforts of constitutional scholars to slice and dice with the "evolution" of originalism in the search for the holy grail of constitutional interpretation. The scientific method employed by such physicists is a tad more objective and perhaps more reliable and verifiable than what we get from the constitutional scholars (both originalists and living constitutionalists). Perhaps it is easier going back to the "Big Bang" than to the much more recent framers/ratifiers to learn the then public meaning/understanding or the ongoing evolution in this holy grail search. So maybe constitutional scholars can come up with the equivalent of a particles accelerator to feed their ideas into. (The accelerator goes round and round as do such scholars from time to time.) Or maybe it's time for a constitutional convention. But this might only start a new cycle of constitutional scholars challenging what a new constitution (or code?) means. On the plus (minus?) side this may provide full employment for such scholars.
 

First, thanks for the cite to Dinan's book, which I intend to read.

Second, consistent with your admonition, I say nothing about how much I admire the Senate's ability to block legislation.

Third, one gets the impression from your post that you would like to abolish the "mal-apportioned" Senate. How exactly would you accomplish this without running afoul of Article V's injunction that "no State, without its Consent, shall be deprived of equal Suffrage in the Senate"?
 

Brett said...

A good deal of the work of today's constitutional lawyers consists of rationalizing quite blatant violations.

Occasionally, the work involves rectifying past violations. After returning the 2A to the Bill of Rights, SCOTUS has now accepted cert on whether the P&I and/or the DPC Clauses of 14A incorporates the 2A against the States. The really interesting part of the cert grant is that the issue of the P&I Clause is back before the Court with the possibility that the reprehensible Slaughterhouse Cases may finally be reversed and the Bill of Rights will be fully enforced.
 

Kurt Lash has posted earlier today at PrawsBlawg the last of his series on Article IV's Privileges and Immunities clause and the 14th Amendment's Privileges or Immunities clause. Lash suggests that it isn't quite clear what the meaning/understanding of the Article IV P&I clause was before the Civil War in determining the meaning/understanding of the 14th Amendment's P(or)I clause. Scholars other than Lash have similarly concluded. So we'll have to wait and see how SCOTUS originalism addresses incorporation of the Bill of Rights as applicable to the states.
 

Per mls, the Articles of Confederation had a barrier to amendment when all the states did not agree, but they found a way around that. Or, some creative way (denounced by some) might be found. SL can provide some hints.

The Privileges or Immunities option is great entry way for scholarship & law professors, but I don't see anything in particular about the right in question (of special note to our good professor here, given his seminal essay on the subject) to open up a whole new can of worms.

Thomas could write a concurring opinion on the point. But, it is notable that even Scalia didn't join his various opinions (e.g., Saenz v. Roe) pushing a broad based view of the P or I Clause.
 

Joe- the “creative way” they found to get around the Articles of Confederation was to abolish them. Is that what you propose for the Constitution?

I thought that finding creative ways to get around the law was a bad thing. Or does that only apply to Republicans? This whole “rule of law” thing is so complicated . . .
 

mls makes thing partisan. Why exactly? How does my remarks justify such trite tactics?

I and others did not criticize various executive actions because they were "creative" as such. We did so because we felt them a violation of the rule of law. Not the same thing. And, since many Democrats joined in, we also did not simply criticize Republicans. Sandy Levinson also doesn't suddenly like the Senate now that Dems are in control. How lame.

This is one reason why I separated "creative" with "or" when talking about what the Framers did with the Articles of Confederation unanimous amendment rule. There, really, the Framers overrode it out of felt necessity and high principle as suggested by Madison in the Federalist Papers [F.40].

The Articles allowed amendment, even if it greatly changed things, but it had to be unanimous. As to this one specific provision, yes, I think the people via supermajority has a legitimate power to put forth a new Constitution or replacement of one part thereof. As noted by the Declaration of Independence, such change should only come when truly necessary.

The Constitution itself did this as to the amendment provision. Is the Constitution itself illegitimate?
 

As to creativity ...

Equal suffrage does not mean the Senate must have the same powers and duties. An amendment can give another more evenly apportioned body various of the powers it now has.

Unsure how this violates Art. V.
 

mls said:

Third, one gets the impression from your post that you would like to abolish the "mal-apportioned" Senate. How exactly would you accomplish this without running afoul of Article V's injunction that "no State, without its Consent, shall be deprived of equal Suffrage in the Senate"?

A constitutions amendment could do it, although the requirements of passing an amendment would pretty much consist of the states giving their consent. The only other way, I think, would be a Constitution Convention, which presumably could start with a blank slate.
 

One other issue: the disparity in populations of the states is much greater now that it was at the time of the adoption of the Constitution. These are rough figures, but in 1790, the difference between the largest state and the smallest state was a ratio of around 12:1. In 2000, it was roughly 66:1. The logical thing to do would be to reorganize the states by combining some and splitting others. Does it really make sense to have two Dakotas, both with populations under 1 million?

The six New England states, plus eight mountain states (Montana, Idaho, Wyoming, Colorado, New Mexico, Arizona, Utah, Nevada) combined have fewer people than California alone, yet have 14 times the representation in the Senate.

Combine a bunch of the less populated states, split California, Texas, and maybe New York, and you would save a lot of money on state government, make the states more governable, and have a much more representative Senate.
 

Reforming the Senate is not as difficult as it seems.

(1) Article 5 states that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." But it doesn't place any limit on amending Article 5 itself. It isn't 'self-entrenching', so arguably you simply need to pass one amendment repealing the final part of Article 5, and then a second amendment to reform the Senate.

(The courts would likely see this procedure as a "policial question" and refuse to get involved.)

(2) You'll still need 3/4's of the states to back reform of the Senate. The best way is to appeal to their self-interest. Propose an amendment that will increase the number of Senators from the most populous 38 states, and disadvantages only the 1/4 of states that are most egregiously overrepresented.
 

T's proposal is interesting in that the other exceptions to Art. V speaks of some amendment that would in "any manner affect" the matters at hand (slave trade etc.) which seems to be a broader barrier. That is, just amending the whole article would do just that.

It might work though it seems to me to violate at least the spirit of the provision. The amendment would clearly have to remove the provision, which would open up the very deprivation barrier.

As to political question, perhaps, though the SC heard cases involving the amendment process.

Seems the best way to approach the Senate is to address its powers. This House of Lords approach in no way violates the provision.
 

"It might work though it seems to me to violate at least the spirit of the provision."

Interestingly, a similar issue arises in the UK as to an entrenching provision of the Parliament Act.

It is the Parliament Act that gives the House of Commons the power to override the House of Lords. Section 2 states that the House of Lords retains the right to veto any increase in the five year term of parliament, but (like Art. V) it is not expressly self-entrenching.

In Jackson v HM Attorney General the question arose as to whether the clause should be interpreted as self-entrenching, i.e. whether the Commons alone could in future amend the Act to remove the limitation on extending the term of parliament. The view of the majority appeared to be that the Commons could exploit the loophole.

Under S. 2 (1) the Parliament Act applies to "any Public Bill (other than ...a Bill ...to extend the maximum duration of Parliament beyond five years)"

Lord Bingham stated in Jackson that

"I see no basis in the language of S. 2(1) or in principle for holding that the parenthesis in that subsection ...[is] unamendable save with the consent of the Lords."
 

Of course I'm not suggesting that Jackson would be considered a binding precedent in the U.S.
 

Interesting. The historical background alone would make good fodder for Prof. Levinson's discussions.

The reference was but the opinion of one law lord. Others used various other reasoning, including that the language did not as clearly bar what was being asked as Art. V. arguably does.

Thus, even if the two situations were comparable (there are probably various ways to differentiate), I'm not sure how far that takes you.

I'm inclined, e.g., to agree with the opinion that held: "That express exclusion carries with it, by necessary implication, a like exclusion in respect of
legislation aimed at achieving the same result by two steps rather than one."

But, it might work. I'm still inclined to go another route.
 

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