Balkinization  

Monday, August 01, 2011

Is the Constitution simply irrelevant?

Sandy Levinson

Paul Krugman ends his column on the disgraceful surrender (also called the "Grand Bargain") as follows:

In the long run, however, Democrats won’t be the only losers. What Republicans have just gotten away with calls our whole system of government into question. After all, how can American democracy work if whichever party is most prepared to be ruthless, to threaten the nation’s economic security, gets to dictate policy? And the answer is, maybe it can’t.

He is, I think, absolutely correct. What we have witnessed is a perverse kind of Schmittian moment, in which political thuggery has prevailed. But the thuggery has not involved any illegal conduct. Rather, it required "only" that the House Republicans take advantage of the rules of American bicameralism and that the Senate continue to operate under the practice of the filibuster. Ironically, the craven President of the United States was so insistent on not even appearing to be thinking of acting like a Schmittian sovereign--even though the 14th Amendment provided a tenable, even if not a "winning" argument before somebody left unspecified--that he saw no alternative to capitulation, which he will no doubt present as a version of "peace in our time." [UPDATE: I WROTE THIS MUCH TOO HASTILY: I HAVE COME TO BELIEVE, THANKS TO THE ARGUMENTS OF LARRY TRIBE AND OTHERS, THT THE SO-CALLED "14TH AMENDMENT OPTION" HAD FATAL LEGAL AND POLITICAL WEAKNESSES. IRONICALLY ENOUGH, THOUGH, OBAMA WOULD APPARENTLY HAVE NOT HAVE LEGALLY TRANSGRESSED HAD HE ORDERED THE ISSUANCE OF TWO PLATINUM TRILLION COINS, HOWEVER "AUDACIOUS" THAT WOULD HAVE APPEARED. THAT'S WHAT SOMEONE PLAYING CONSTITUTIONAL HARDBALL WOULD HAVE DONE.]

My friend and former colleague, Brian Leiter, posted the following comment to my earlier post on Stanley Greenberg's essay in the NYTimes:

1. You have correctly pointed out the deficiencies of the U.S. Constitution, but you can't seriously believe that the reason the U.S. is a reactionary and dysfunctional plutocracy is because of the particular Constitution adopted in 1789.

2. Do you seriously think a Constitutional Convention in the era of Fox News and other crypto-fascist media would yield anything other than a horror? This defies belief.

You're stuck in an Idee Fixe at this point, and it's making your commentary increasingly irrelevant. The Constitution is epiphenomenal at this point.

I don't rule out the possibility that Brian is right. I have become something of a crank, and perhaps the Constitution is "epiphenomenal." That's a debate very much worth having. I do not think that the Constitution is the explanatory be-all and end-all. But does it really explain nothing about our polity? What if, for example, the President had the power granted by the French Constitution to dissolve the legislature and call for new elections? Is there any reason in the world to believe that the Republicans would prevail, given that the 2010 victory was achieved by the massive falloff in turnout by Democrats from 2008? Indeed, perhaps we should even take seriously the premise that Obama might have behaved differently if he had been convinced, perhaps while teaching at the University of Chicago, that the President had the power to stand firm against the political thuggery of the Republicans by declaring that the debt limit is unconstitutional and he has the power simply to ignore it. [SEE ABOVE UPDATE/]

Does Brian believe that orthodox Marxism explains our present situation? Would smart capitalists really want a deal that almost certainly guarantees a return to recession, if not depression? Or is the point that capitalists are like Kansas;they really doesn't know their own class interests, so fixated have they become on Grover Norquist's no new taxes? (I don't rule that out, but it certainly doesn't speak well for their analytic powers, given that no sane person can believe that massive cutbacks on government spending will lead to new jobs, in part because there are ever fewer people with disposable income to return to our old consumer-goods based society. Indeed, it is amusing, in some sense, to watch Kay Bailey Hutchinson moan about cutbacks in NASA and the havoc that may cause the Houston economy. And so on.)

I'm more than happy to join Brian in describing Fox News as crypto-fascist. But what is the relevance with regard to debating the proposals that Tea Partiers are making with regard to constitutional amendments? Should we be debating the proposals on their merits (which I think are few) or should we simply be saying that the Constitution is irrelevant, so that it really doesn't matter at all what the Constitution says? I don't mean this as a rhetorical question. I really do want to know what Brian thinks the American left should be saying or doing in response to the despair well articulated by Paul Krugman.

UPDATE: Matt Miller has an interesting column in the Washington Post castigating the agreement for its utter failure to confront the present jobs problem or the long-run problems of an aging population that will make ever greater demands on the medical insurance and social security systems (not to mention the discussion that will have to take place about whether we can any longer afford to pretend to the be "New Rome." For better or, I think, worse, he concludes by endorsing Americans Elect and the prospect of a third party. Or is the Constitution merely epiphenomenal with regard to the lunatic way we conduct presidential elections in the United States?

Comments:

"Or is the point that capitalists are like Kansas;they really doesn't know their own class interests, so fixated have they become on Grover Norquist's no new taxes?"

Maybe the capitalists who matter have decided that because workers are cheaper and pent up demand is greater elsewhere they no longer require U.S. consumers or workers to maximize their profits.
 

But, Sandy, the Democrats in Congress took advantage of their position to reject a debt ceiling increase last week, because they didn't like the terms. Obama has taken advantage of HIS position to reject at least one debt ceiling plan HE didn't like, because he didn't want the pesky issue to come up again while he was running for reelection.

What the Republicans just "got away with" is this thing called a "compromise"; Perhaps you've heard of it? Neither side gets all it wants? You're describing the Democrats getting less than everything they want as a "disgraceful surrender", and you've got the nerve to call the Republicans ruthless? That's partisan hackery, not objective analysis.

"After all, how can American democracy work if whichever party is most prepared to be ruthless, to threaten the nation’s economic security, gets to dictate policy?"

The only reason their supposed ruthlessness mattered one whit is that the people voted to give them control of the most representative branch of government, with the least lag in responding to public opinion. And public opinion is what they've been responding to, or a compromise more favorable to the Democrats would have been arrived at weeks ago.

You seem to want a democratic government which will simply be unresponsive to public opinion when it differs from your own. I'm not impressed. There's nothing wrong with Kansas, Kansas is simply entitled to have a different set of preferences than you have.
 

Sandy's UPDATE closes with this:

"Or is the Constitution merely epiphenomenal with regard to the lunatic way we conduct presidential elections in the United States?"

Focusing on presidential elections is not a response to Brian Leiter's point. How might a Convention address presidential elections without also addressing many other other parts of the Constitution? Rather than the conduct of presidential elections under the Constitution, the problem seems to be with the functioning of the Executive under the Constitution iin situations of mixed government such as we are in with the debt ceiling crisis. Changing this would be problematic. While I have sympathized with Sandy's concerns with a broken Constitution in my comments to his posts at this Blog over the years, the solution of a Convention even under the best of political circumstances (which of course is not the case currently) is not realistic. While I might personally favor a "Restatement" approach, that would most likely be considered too elite as compared to a more egalitarian Convention. Keep in mind that Tea Party members claim bottom-up egalitarian views even though a distinct minority, a tail that wishes to wag the dog.
 

Brett's reference to "public opinion" suggests that Brett would prefer governing by polls over representative governance. That's plain silly. Identifying what is "public opinion" and interpreting it, perhaps on a daily or weekly basis, is in the eye of the political beholder, which can vary from state to state, region to region, and within them. Brett seems to favor the parliamentary form, but perhaps without limitations on funding and length of campaigns as a means of demonstrating "public opinion." With current day technology we could get instantaneous "public opinion" that can of course change quite rapidly, especially with unlimited funding per Citizens United. But is that any way to run a government in a globalized world? Or would Brett prefer isolating America from the rest of the world?

And Brett seems to ignore that many - if not most - of the people who voted in 2010 to change control of the House had also been ardent supporters of Bush/Cheney during 1/20/01 - 1/20/09, giving us tax cuts, spending the Clinton surplus, two wars, unfunded medical benefits under Medicare, growing deficits, diminished regulation, culminating in the Great Recession of 2008. This demonstrates the fickleness of "public opinion."
 

"The Constitution is epiphenomenal at this point."

I take back my agreement with Leiter, which was added after the fact without thinking.

If the Constitution were epiphenomenal the republicans wouldn't have followed it, but they did. As Marx says, "the game is for playing" and they play it. But the democrats play badly so you talk about changing the rules. Your friends are bunch of prep school kids playing street ball with the locals.

Rules aren't the foundation of society. There needs to be a social commitment among all the players to the community as a whole. Your indifference to the game of politics is as decadent as the democrat's passivity. And Leiter's response is as decadent as the republican thuggery.

"The Constitution is epiphenomenal at this point."
No. A game without a ref is still a game. That's how democracy works.

All politics is schoolyard politics. It's rough and it needs to be.
 

D.G. tells, as he changes his mind (flip flops):

"'The Constitution is epiphenomenal at this point.'
No. A game without a ref is still a game. That's how democracy works.

"All politics is schoolyard politics. It's rough and it needs to be."

I don't know what kind of a schoolyard D.G. got his "chops" in but I got mine growing up in the 1930s early '40s schoolyards of Boston's Roxbury district. A prominent and popular schoolyard game at the time was "King of the Hill." Of course, Kings were dethroned and replaced by new ones repetitively. There were no refs so that survival kept us from going overboard with the game. But how children in schoolyards resolved their issues, at least back then, is different for responsible adults.

Over this past weekend, I watched the movie "Bad Company" starring Anthony Hopkins and Chris Rock, a "thriller" that resolved a dirty bomb problem with seconds to go to save New Yorkers, along the lines of so many not so thrilling movies and TV shows. The debt ceiling issue has had (and may still have) a similar last second resolution. Perhaps a parody of "Bad Company" might, if all goes well with a resolution down to the wire of the debt ceiling issue, demonstrate the utter silliness of this non-crisis. Just imagine the testosterone coursing through our Legislative and Executive branches as the seconds tick down while resolving this crisis does nothing about creating jobs and otherwise letting us climb out of the deep hole created by Bush/Cheney's 8 years culminating with the Great Recession of 2008.

Getting back to D.G.'s schoolyard theme and my schoolyard experience, some of the wiser students may have watched from the sidelines and learned from "King of the Hill" without getting bruised. It isn't clear as yet who in the Executive and Legislative branches will end up bruised.

And it should be kept in mind, as Yogi Berra said, "It ain't over till it's over."
 

Or maybe the progressive forces need a set of counterproposals: every time a balanced budget amendment is proposed, tie it to an amendment making voting in the Senate weighted by the number of people voting in senators' last election.
 

This comment has been removed by the author.
 

Shag,
My comment referred to an addendum to a comment on the previous post. Right below leiter's which he published while I was typing. Read what I wrote there. My mistake was in casually relating his arguments to mine. I stand by what I wrote. And you'll notice that levinson took my advice at least in reading krugman who is a critic of the democrats not a blind loyalist.

My reference above is to basketball, but baseball works as well. And to the schoolyard: victims' weakness only makes bullies angrier. And no one respects whiners. Also of course adversarialism is a practice not a theory. And leiter is a high churchman a reactionary. I let one slip by that's all
 

Sandy:

Paul Krugman ends his column on the disgraceful surrender (also called the "Grand Bargain") as follows:

In the long run, however, Democrats won’t be the only losers. What Republicans have just gotten away with calls our whole system of government into question. After all, how can American democracy work if whichever party is most prepared to be ruthless, to threaten the nation’s economic security, gets to dictate policy? And the answer is, maybe it can’t.

He is, I think, absolutely correct. What we have witnessed is a perverse kind of Schmittian moment, in which political thuggery has prevailed.


Really?

A generous count of the "thugs" driving this deal are maybe the roughly 100 members of the Conservative Study Committee in the House and the handful of Tea Party supporters in the Senate. That's it.

If the Dem President or the Dem Senate had offered the usual Dem plan for tax increases now and future spending cuts which will never happen (see 82, 89 and 93), claimed it was a budget matter to get around the filibuster rule and then sought to RINO support, how precisely could the minority of "thuggish" representatives we in the Tea Party elected last year stop it?

The fact is that both the Dem President and the Dem Senate up for reelection in 2012 are terrified of actual voter response to their preferred polices. The Senate has not issued a budget in years and Obama's last budget of tax and spending increases crashed and burned in the Senate 97-0.

The fact is that the Dems had hoped to simply sit back and block any GOP proposal without offering anything of their own and recreate the largely mythical Clinton victory over Gingrich in 1995. This strategy backfired in two ways.

1) Because the GOP establishment in Boehner and McConnell could not get a single Dem vote, the Tea Party "thugs" held the balance of power to enact any bill and used this. Of course, we in the Tea Party have been hammering all of our Congress critters. This two-fer kept the RINOs in line.

2) Politically, this standoff proved to be a loser for the Dems with the voters. Obama's numbers tanked while the GOP standing in the congressional generic rose to 2010 levels among likely voters.

Given that it only has control over 1/3 of the government, this deal is a rather surprising victory for the center-right electoral majority in this country. Maybe there is democratic life in the old Republic yet.
 

Our yodeler's parenthetical:

" ... (see 82, 89 and 93) ... "

is incomplete as it ignores what happened in 86 with its tax bill and what happened after 93 that resulted in the Clinton surplus despite Gingrich's Contract that was passed on to Bush/Cheney who did what I described in an earlier comment. Tax cuts don't improve the economy. Spending reductions at a time like this does not create - and probably loses - jobs. No doubt our yodeler not so secretly desires that the economy continue to slide for Nov. 2012. Perhaps the Republican nominee for 2012 will have a Nixonian "secret plan" for improving the economy and creating jobs. But memories are not that short regarding Bush/Cheney's 8 year tour ending with the 2008 Great Recession. Our yodeler tends to count his chickens prematurely, which perhaps coincides with House GOPers/Tea Partiers' game of chicken. But our yodeler has shot blanks consistently in the past, even as he has changed from an enabler of Bush/Cheney to a tea and bake sale ground-up egalitarian.
 

The nation is in a moral panic about debt. That's the thing Sandy and many others seem not to get. That is why the "invoking the 14th amendment" was never a live option: not only is it not a winning constitutional argument, as the president himself said, seizing power from congress when they people are behind congress does not work. You just get driven out of town on a rail.
 

Shag:

You are free to hold tightly onto your own fiscal fantasies, but the fact is that the 82, 89 and 93 deficit reduction packaged offering tax increases and spending cuts only resulted in tax increases. I am amazed Obama and Reid did not even attempt this scam one more time.
 

Our yodeler describes as a scam what took place AFTER Gingrich's Contract failed and the economy looked pretty good, leaving that Clinton surplus for Bush/Cheney to squander with tax cuts, etc, noted in an earlier comment.
 

Brett's theory of "compromise" makes no distinction between the cops and the kidnapper for ransom.
 

I agree that we are ina "panic" over the debt. The obvious question is whether there are justified concerns for the current level of panic or whether it is not cleverly manipulated by certain political and economic interests who are using it for their own factional ends.
 

Mark field.
Kidnappers are breaking the law. The republicans have not. But boh you and brett are wrong.

SL.

There is no immediate debt crisis there is a political crisis. As the cbo showed letting the bush cuts expire and obamacare run as desgned the debt vanishes in 10 years. And its nor only republican misdirection obfuscation and lying its democratic passivity. Playing the victim card does nothing. Playing the absent minded professor does nothing.
 

Mark seems to think that duly elected representatives voting the way the ran on voting somehow constitute "kidnappers", if they're not pursuing his favored policies.

I don't see cops OR kidnappers here. I see a democracy where not everybody is ignoring their constituents.
 

All forms of representative government are becoming obsolete. Irrelevance is just a result of that. The modern business corporation is the emergent dominant human organizational model.

Granted it gets tricky because corporations are created by government but no matter which government they are chartered by the are accepted as 'individuals' by all and can move if needs be and somebody will always be eager to take them. Not that a corporations charter has been dissolved ever.

I strive to be agnostic on this because I'm not going to be the fool who stands on the road of history yelling stop. History marches on.

It remains to be seen if China can be captured in this and the degree to which it can't be is the degree to which they are fated to be the mightiest nation on earth. If for no other reason that nations themselves are becoming irrelevant and then they would still have one that functions sort of like we expect.

I guess there is another caveat which is if the financial and economic structures collapse in which case corporations do too.
 

No, I think that virtue -- i.e., the willingness to put aside one's own interests for the sake of the nation -- is a sine qua non of republican government. Using the debt ceiling as a hostage is not acting in the country's interests, it is betraying those interests, both short term and long. The fact that their behavior may have been technically "legal" (a dubious assertion in light of the 14th A) is irrelevant.
 

Mark Field said...

No, I think that virtue -- i.e., the willingness to put aside one's own interests for the sake of the nation -- is a sine qua non of republican government. Using the debt ceiling as a hostage is not acting in the country's interests, it is betraying those interests, both short term and long

Our representatives declining to borrow and spend to avoid national insolvency and economic collapse, even though it may anger political supporters who receive that spending, is the epitome of republican virtue and responsibility
 

Bart you repreent the minority position. And you argue for using every legal trick in the book to win your point against the desires of the majority. Your extremism is disrespectful of our system of government. I won't link again to the list of economic reports and expert opinion republican and democrat who say you're also full of shit.
 

DG:

Declining to spend and borrow to avoid Greek-style sovereign insolvency and economic collapse is a minority position? Perhaps on the left. The rest of America made their support for that position quite clear in 2010 and in nearly every credible poll since then.
 

It's all Greek to our yodeler, metaphorically speaking. But that's like comparing Mississippi to the entire United States. Maybe too much ouzo inhalation in Colorado.
 

Every poll says the people choose jobs before debt.
 

Mr. Depalma's point would be made better if hehad been clamoring for maintaining the debt limit during the Bush administration, but I recall him excusing the costs of massive spending as minor percentages of the GNP that could be therefore ignored.

I think Isaac is on the right path. All of this political theater hinges upon a perception of a perception; how the political class imagines the voter responses to their actions is key to understanding the politicians' actions. The reality of the situation takes a back seat to perception--simply stating facts won't suffice to persuade either the electorate or the representatives.

The Constitution is to blame only when the structural relationships it sets forth fail to match the given social realities. Bourdieu referred to this as the hysteresis between field and habitus; when the manner of doing no longer matches the social structure in which practice takes place, there is a lag period before structures are modIfied to accommodate the new manner of doing things. Taking the Constitution as the basic underlying structure, modification would seem to be necessary to reinforce and codify the new realities. The reason many of us balk at this particular post-liminal restoration is that we're not too excited about the new practices. One answer may be to start revitalization movements of our own that can counter those more vocal ones; otherwise, the cultural and political patterns preferred by those intent on gutting the power of government to protect its people will be the only starting point. This last week has shown how that conversation will go.
 

I have not read Larry Tribe's objections but if he is saying that the debt ceiling law is not actually unconstitional, (however stupid), then I agree. I believe, however, that a more limited use of the amendment to justify a Treasury overfdraft could stand constitutional muster. Obama should have stood firm for a reasonable deal and taken recourse to some bold, legally aggressive action if neccessary to get it. I would have gone along with the coin trick although it would not have been my first choice.

http://wealthofnotions.blogspot.com/2011/07/presidents-plan-for-avoiding-default.html
 

Prof. Levinson asks, "Would smart capitalists really want a deal that almost certainly guarantees a return to recession, if not depression?" No, they wouldn't and don't. That's the program of the Tea Party, which represents small capital and the self-employed -- not big ("smart") capital. (OK, that's a massive oversimplification, but a useful one.) Big capital consistently opposes the Tea Party's bid to shred the social safety net.
 

Regarding: "OBAMA WOULD APPARENTLY HAVE NOT HAVE LEGALLY TRANSGRESSED HAD HE ORDERED THE ISSUANCE OF TWO PLATINUM TRILLION COINS."

How can anyone issue coins that are not allowed by law? According to 31 U.S.C. § 5111, the Secretary of the Treasury (US Mint) cannot issue coins that are not codified in 31 U.S.C. § 5112. As I read the law, there is no authorization for "two platinum trillion coins."

So let's say congress did authorize the striking of the trillion dollar coin. The law requires that the US Mint comes up with a design, run it pass the Commission of Fine Arts, the Citizen's Coinage Advisory Committee before even beginning the engraving process. Once engraved, the design needs to be processed into master hubs, working hubs, then dies before the striking can begin. The US Mint also has to ensure that there is sufficient platinum to strike the coin.

Then once the coins are struck, who's going to buy them? According to the law, the US Mint is restricted to being a manufacturing organization. Someone has to buy the product. Who is going to pay the US Mint $1 trillion for a special coin? Does the Federal Reserve have that much capital laying around that it could pay for the coin?

As an alleged expert, you need to look further than the 10,000 foot view to understand the ramifications of what you suggest. While I do not think the president handled this well, I am glad he did not try some lame stunt that would have given these Tea Baggers reason to incite calls for the president's impeachment. Maybe, he's smarter than you think!
 

Scott: 31 U.S.C. § 5112(k) is the key to the platinum coin idea.
 

Sandy, thanks for replying to my comment. I'll just make one observation. The representatives of the ruling class who signed this letter,
http://www.financialservicesforum.org/attachments/365_20110728_fsf_letter_to_obama_and_congress.pdf

are not going to be affected by cuts in Medicare or Social Security; nor will they be affected by rising unemployment. They will however benefit from continued low taxes, especially on capital gains. So I think these folks assess their short-term interests quite adequately, putting their moral depravity to one side. To be sure, ruling classes typically misapprise their long-term interests, but that, of course, is why ruling classes rise and fall over the long haul.
 

Our representatives declining to borrow and spend to avoid national insolvency and economic collapse, even though it may anger political supporters who receive that spending, is the epitome of republican virtue and responsibility

This is a perfect example of Bart's utter lack of principle or consistency in his polemics.

Previously on this blog Bart both a) scolded the "liberals" here for allegedly not understanding the gravity of default, and b) described default as unthinkable in the danger it posed to the US economy.

Now, that's all down the "who cares what I wrote in the past" hole as Bart defends the GOP threat to stave in our economy unless they got their wish. (A wish, by the way, that would hold little to no interest for them if a Republican held the White House.)
 

Mattski, all that was threatened was a balanced budget. That's what happens when authority to borrow more money isn't extended: The budget has to be balanced.

Now, I realize that only spending as much as we have coming in is seen by liberals as a ghastly circumstance, comparable to thermonuclear war, or a zombie Apocalypse. But that doesn't mean people who don't view a balanced budget as cosmically horrific really mean for not raising the debt ceiling to result in default.

Just because Democrats would see no borrowing as a reason to stiff our creditors, instead of reduce spending, doesn't mean people who can actually conceive of reducing spending share the same determination to spend no matter what it takes.
 

The only reason for their alleged cruelty mattered the least is that the people voted to give control of the representative branch of government, with minimal delay in responding to public opinion. And public opinion is what they responded to, or compromise more favorable to the Democrats was reached weeks.
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