Thursday, October 13, 2011

Closed doors and the Constitution

Sandy Levinson

In a New York Times article detailing the frustration of many senators with the opacity of the new "Supercommittee" that is supposed to cut the budget, one reads the following:

“The American people deserve to know what is happening in this committee,” said Senator Kelly Ayotte, Republican of New Hampshire, noting that the panel’s recommendations would go directly to the floor of the House and the Senate. “These negotiations should be fully open.

“We don’t get a better result for the people of this country when things are done behind closed doors.”

There are many things that might be said about this, but let me make one obvious point: There never would have been a United States Constitution had the Philadelphia Convention not been entirely conducted behind closed doors (with absolutely no leaks). The political theorist Jon Elster has argued that opacity is highly conducive to successful constitutional design (i.e., the achievement of a set of decisions that contending parties in fact agree to accept) and, concomitantly, that transparency is often fatal, precisely because "the base" outside can always accuse their ostensible representatives of selling them out, etc., thus making agreement (also known as "compromise" impossible.

This view obviously has some unattractive implications with regard to the entire democratic process and the general desirability of transparency (and accountability). One might well believe it's worth sacrificing a certain amount of "effectiveness" for the virtues of transparency. But this doesn't change the fact that Sen. Ayotte demonstrates that she literally remembers nothing relevant (assuming she ever knew) about the history of the American Constitution and the actual way that the vaunted "Framers" conducted their work. UNLESS, she actually agrees that the Constitution is indeed highly defective (and was from the very start), so that we would in fact have been better off with a more transparent process. In that case, I apologize for my snarkiness and cheer her willingness to criticize the Framers (and, who knows, to support a new constitutional convention to rectify the mistakes they made behind closed doors).


Not only that, but we never could have killed bin Laden if the operation had not been planned behind closed doors. So unless Senator Ayotte retracts her outrageous comment in support of transparency, we will have no choice but to conclude that she supports Al Qaeda.

Gotta love that rigorous logical thinking.

Of course, one could easily believe that, had the first convention been transparent, they might have proceeded to do what they'd been sent there to do, and simply reported out some amendments to fix the Articles.

Which might very well have resulted in a superior outcome, compared to scrapping the Articles entirely. Maybe transparency would have been better.

There's a place for transparency, and a place for obscurity, but I'm persuaded that, whenever you're making public policy choices with nation-wide impact, you're well into the first place.

Sandy says:

"UNLESS, [Sen. Ayotte] actually agrees that the Constitution is indeed highly defective (and was from the very start), so that we would in fact have been better off with a more transparent process."

In Sandy's too long absence at blogging, I became aware of his participation in a program at Pepperdine to deliver a Brandeis Lecture. See 38 Pepp. L. Rev. 821, 2019-2011. His "Compromise and Constitutionalism" is a great read on the nature of "compromise" during the 1787 Convention. There were several presenters and Sandy's responses to some of their comments in this same issue, all well worth a read, particularly Paul Finkelman's "The Cost of Compromise and the Covenant with Death." The plan of the Obama Administration to kill bin Laden is a blip compared to the efforts of the Convention, such that mls's "silly-gism" is a comparative stretch.

With regard to the "Supercommittee," mls has an interesting post at his Point of Order blog on what constitutes a "meeting" pursuant to the statutory requirements imposed on the "Supercommittee. Unfortunately, there have been no comments to his post. Perhaps some may now wish to comment on "What constitutes a meeting?" of the Supercommittee that would provide transparency to its deliberations. Without such transparency, the House and Senate would not be in a good position to respond to the action/inaction of the "Supercommittee," except perhaps for a few "insiders;" and both political parties would provide their spins as campaign 2012 proceeds with perhaps the economy continuing to be held political hostage..

While I share Brett's "place for transparency," his "what if?":

"Of course, one could easily believe that, had the first convention been transparent, they might have proceeded to do what they'd been sent there to do, and simply reported out some amendments to fix the Articles."

is not so simple. The Articles' requirement of unanimity for amendments would have been a huge barrier with or without transparency. The Constitution's Article V with less than unanimity while less of a barrier remains quite high. With the benefit of 20-20 hindsight, what might have resulted from "merely" amending the Articles?

The level of literalness in the first comment is not convincing. Legislative budget matters and planning covert military operations, not the same thing.

Prof. Levinson ends on the wrong foot. Sometimes, negotiations are not all in the open. The alleged defectiveness of the Constitution and the fact it was composed secretly is two different things.

Brett's view of history is interesting, as always. You might want to read the Articles and note that there are many features found there that are also in the Constitution.

Lawrence Lessig was on Rachel Maddow yesterday promoting his book and idea of using the never used states calling for a convention method to amend the Constitution to deal with the campaign finance issue (and maybe other things). Our resident Tea Party representative raised the point that they too are interested.

[Republic, Lost: How Money Corrupts Congress--and a Plan to Stop It ... the Art. V. approach is one option provided, looking at the book on Amazon.]

And, I'm not sure what Sen. Ayotte is supposed to admit on the "highly defective" nature of the Constitution, particularly since it was amended 27 times. The amendments -- like the ratification of the Constitution itself -- was done out in the open.

I don't really see the issue here. Should the Constitution have had some provision required each and everything some subset of its members do be out in the open? Some rule on how committee proceedings should be set up? Floor amendments?

Is this not some bit of rules of proceeding that would reasonably be left to the changing situation? As a matter of constitutional defectiveness, is this really the best thing to point to?

Michael Justin Teter's Guest Blogger post (10/13/11) "Congress can't recuse itself" does not provide for comments but it should be considered in conjunction with Sandy's post, as well as mls's Blog post earlier referenced by me.

As to the Article V Convention route, the current festering, heated political climate may make this more difficult to address than global warming.

Yeah, I realize that military operations and legislative budget planning are not the same thing. The point of my “silly-gism” was to demonstrate the silliness of taking Ayotte’s general statement about transparency in modern legislative proceedings and making inferences about her position on, or alleged ignorance of, how the Constitution was drafted two centuries ago. I note that the article quotes Mike Lee, who certainly does know how the Constitution was drafted, making the same pro-transparency point; for some reason Sandy didn’t pick on him.

There are valid arguments for and against allowing the supercommittee to deliberate behind closed doors. It hard for me to see, however, the justification for adopting an open meeting rule and then immediately making it meaningless by a tortured definition of “meeting.” NPR, incidentally, has caught on to this point (

Finally, now that I know Brett would have preferred keeping the Articles of Confederation, I have to concede to him the “Mr. Conservative” title. Darn.


"Finally, now that I know Brett would have preferred keeping the Articles of Confederation, I have to concede to him the 'Mr. Conservative' title. Darn."

"Mr. Paleo-Conservative" would be a more apt title to bestow upon Brett.

I concur with mls' valid arguments for and against.

I don't find the whole thing that germane, as I said, but military operations and constitutional convention proceedings aren't quite the same thing either.

I don't know how much Sen. Ayotte does or does not know about the proceedings in '87. She did go to law school, clerk for state judge and eventually become attorney general. So, don't know how useful citing Sen. Lee instead would be respecting something that many learn in high school civics class. The quote might have attracted him and she was quoted first. Both are conservatives.

And, don't see how Prof. Levinson is saying what she said is "outrageous" as compared to I guess (it is a bit confused) inconsistent. "Outrageous" has a stronger tone.

while transparency may be desired in many things in life, including some deliberations, as a practical matter above and beyond any constitutional imperative, there are times when opacity is more desired. i would respectfully submit that this is one of those times.

we only need to harken back to the negotiations over the debt ceiling over the summer. when word spread of the "grand bargain" that may have included some form of revenue enhancement, tax increase, or whatever you want to call it, the tea party conservatives went berserk, and forced john boehner to back off. i suspect that if the super committee is truly operating in the spirit of compromise and in the best interests of the nation as a whole, then revenue enhancements, tax increases, etc., are, in fact, on the table. i cannot imagine that they would remain on the table if word got out to the general public and certain extremely conservative members of the media, who would then flog it to death.

the super committee is charged with coming up with a package that is to be voted up or down without amendment by congress. it seems to me that the most effective way to come up with such a package is to negotiate behind closed doors and then present the package. the members of the committee can then defend the package as a whole, and each member of congress can then vote, ultimately forcing them to clearly state why they either voted yea or nay.

The analogy between the super committee process and the constitutional convention is not perfect because the states refused to adopt the Constitution without a bill of rights while the supercommittee product is a take it or leave it proposition.

Perhaps there is a good argument for designing the basic framework of compromise in private, then submitting the result to public debate and amendment.

To follow up on phg's great point,
the supercommittee's opacity is not particularly exceptional. Legislators draft legislation out of public view and they negotiate amongst "key" members behind closed doors frequently.

There are at least two key benefits to keeping the supercommittee's workings closed for now. First, it insulates the group from some political and electoral pressures during the negotiations. While in some situations this could be a concern, here, where the members were selected in a way that ensured partisan balance (and limited ideological imbalance) it is less of a problem. Moreover, the members and their negotiations will be subjected to political scrutiny before the policies they propose become law. They can be held accountable easily enough then.

Second, maybe -- just maybe -- the opacity is also making it slightly harder for interest groups to impose their will on members of the supercommittee.

I do think that the burden should fall on those who desire closed negotiations to explain the benefit. But I think, in this case, the benefit exists. Given that, what do Senators Ayotte and Lee think that transparency substantively adds?

Finally, speaking of the Constitutional Convention, this discussion reminds me of Nathaniel Gorham's statement in opposing the provision allowing 20% of a chamber's members to call for a recorded vote. He said, from his experience in Massachusetts, that recorded votes are used for "misleading the people, who never know the reasons determining the votes."

I fear that the real purpose in making the supercommittee's discussions "transparent" is to vilify and threaten and mislead -- all for political gain.

Joe, I suspect you understand the difference between thinking the Articles better than the Constitution, and thinking that something midway between the two, resulting from amending the Articles, rather than scrapping them, might have been better than both. The latter being my actual view.

"There are at least two key benefits to keeping the supercommittee's workings closed for now. First, it insulates the group from some political and electoral pressures during the negotiations."

Considering that the biggest political divide in this country is not between Republican and Democrat, or Liberal and Conservative, but rather the governing class and everybody else, all it does is assure that the process will be 100% influenced by pressure from that former faction, with no influence from the latter.

I know the difference Brett, but if you read the Articles, you will see that there are many provisions that are found in the Constitution are also found in the Articles.

The privileges or immunities clause, full faith and credit, retrieval of fugitives, speech and debate clause, various limits on states found in Art. I, sec. 10, various powers of Congress and more are all found in the Articles. It wasn't just "scrapped."

As to what is best, that's debatable, but it was no surprise that the convention was there to submit major changes given various weaknesses experienced. If you add what was kept to what was clearly on the table (including a stronger power to collect revenue and the need of a permanent executive of some sort and a court of some sort), what shouldn't have been added is unclear.

I also don't understand how the process will be influenced "100%" by the governing class when "everyone else" will see what the final result is and if they don't like it, they can vote the people out, not give them as much support (including money), etc. Why this would matter 0% is unclear to me.

Also, writing a new Constitution that provides some things from the old and some new, including in some ways clearer language (Art. IX is basically a big lump) than was written in 1777 in the midst of the Revolutionary War would be reasonable.

It would be somewhat unwieldy to simply "amend" the old document. It would make more sense to me to rewrite it, as a type of new draft, using some old, some new.

Joe, I'm not sure why you keep assuming that I haven't read the Articles of Confederation. I'm well aware that the Constitution wasn't a total break from it. Just a big enough break that they knew they'd never get it ratified under the unanimous consent rule the Articles specified.

The Articles didn't provide for a strong enough central government. It appears to me the founders overshot a bit with the Constitution. Indeed, who can review the debates over the adoption of the Constitution in light of subsequent events, and not conclude the anti-federalists were proven right in their concerns?


I understand your point, but disagree. It wasn't until well after the Civil War that the federal government became as powerful and expansive as it is today. But that was a product of the civil war amendments more than of the original Constitution. If anything, pre-14th Amendment history reveals that the anti-federalists' concerns were not realized (and, I would argue, were never "right").

Brett, you referenced "scrapping them" ... now you say not a "toal break." If "you" (Brett or anyone) reads the Articles of Confederation, as I said, they were not simply "scrapped."

If all you mean is that it was changed enough so that every state wouldn't sign on, well, a small change in tax policy couldn't meet that barrier. The inability to even do that, even with the need of funds, was a big reason a new rule was put in place, eventually accepted by each state.

I don't know what "subsequent events" proved the Anti-Federalists right. The federal government didn't seem that strong before the Civil War, slavery a problem the country not ready to solve in 1787. MJT is correct.

The fact the government set in place in 1787 would prove problematic long past the people who wrote it was dead doesn't show they did that bad of a job. And, on balance, I don't know how right the Anti-Federalists were correct, though clearly we have different policy views on various subjects.

Anti-Federalists also supported various local options, such as slavery in various cases. If you think the 14A, which many of them would oppose, is a bad idea, I too am not on the same page. As to their concerns about the dangers of central government overall, yes, there are dangers, but a "more perfect union" is not a perfect one.

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Joe, the did "scrap" the Articles, by proposing a complete new constitution in their place, rather than a series of amendments. The new constitution might have had some commonalities with the old, but it was still a new constitution, not amendments.

As for whether any amendments could have gotten past that unanimity requirement, guess we'll never know, because none were ever proposed, and hence we never got to see how the states would have responded.

Now, on the feasibility of amending the current constitution, I'd simply note that 82% of amendments which have gotten as far as being sent to the states have been ratified. Over the last 200 years, 0.29% of amendments proposed in Congress got sent out to the states. And from this people conclude ratification is the obstacle?

Even the 21st century, as short as it's been so far, has seen, (IIRC) 13 amendments proposed in Congress which haven't been sent to the states.

This comment has been removed by the author.

We are dealing with semantics now regarding "scrap," so I won't belabor the point.

The point is even a minor needed amendment didn't pass the requirement -- we know this from history since it was tried -- and in fact, every state eventually DID ratify when the unworkability of the provision was made apparent.

I don't know what your your math is supposed to prove, but it is duly noted that people throw out lots of ideas, bills and amendments that don't go anywhere.

The issue is not what a few people in Congress propose, but those that actually might have majority support but doesn't get thru Congress because of supermajority requirements or it isn't even tried because it is assumed it won't be ratified by a supermajority of states.

The effort being major, it isn't going to be put into effect if doomed to fail. These significant proposals is what matters, which would severely change your math. In fact, not too many. Some would include a child labor amendment, the ERA, the balanced budget amendment and (though it didn't get too much support) DC statehood.

I again don't see how "right" the Anti-Federalists were, particularly until at least the late 19th Century, if not later, and even then, not taking everything into consideration. And, by then, the Constitution provided a more workable system of amendment, or (honestly) enough flexibility to deal with many new situations. Others, down to use of a two term limit to restrain the more powerful presidents, can be dealt with amendments.

Here's a link to "Paleoconservative - Definition":

that might serve as a guide to understanding Brett's comments. Before Brett's through, that hole he's digging will get him all the way to China.

I will agree that truly weak amendments never reach the states to be defeated, and this will bias the stats towards a lower Congressional success rate than at the level of state ratification. Still, that's one heck of a ratio, 283 to one. Perhaps more notable is the fact that the last time Congress sent an amendment to the states was the D.C. voting rights amendment, which passed Congress in 1978, and was rejected decisively by the states.

33 years ago!

More recently, both term limits and balanced budget amendments, popular enough to have a good shot at being ratified, were carefully managed through the Congressional votes, with multiple versions voted upon, for the specific purpose of assuring that everybody who found it politically necessary to vote for them could, without risk of their passing Congress.

I think it's fair to say that the real obstacle to constitutional amendments today is Congress, which is why there's so much talk these days of a constitutional convention. Congress simply refuses to originate amendment the public wants.

"283 to one."

Nearly all of them were total non-starters. That is, there really was simply was no wide public support for them. So, why that impresses you is unclear.

I need details for: "Congress simply refuses to originate amendment the public wants."

We elect Congress. "Congress" didn't, e.g., block civil rights reform. A major segment of society opposed it and our system is set up to guard against change if some strong voiced minority opposes it.

Blaming "Congress" for not passing things when the public at large has no strong incentive to do much about them is misguided. What does the "public want" and actually is willing to do much about, that Congress refused to amend the Constitution to do?

And, if the amendment can't go through, because the PEOPLE of enough states won't support it, even if a majority does, they, not CONGRESS have a major part of the responsibility.

Joe, what must be taken into account is that, at least at the federal level, and to a lesser degree at the state, politicians systematically differ from the general public in their views of a number of issues. They amount to a self-perpetuating political class who are able to defeat representative democracy on matters important to them.

Lack of transparency aids them in doing this, by keeping the public ignorant of who they must punish at the voting booth. Is suspect denying the voters information needed to cast informed votes on issues where politicans systematically disagree with the public is the chief reason for lack of transparency.

In his most recent comment, Brett seems to ignore Article IV's guarantee to the states of a republican form of government. Perhaps Brett has a problem with that provision. Regarding the lack of transparency that concerns Brett, perhaps he can identify in the Constitutions a specific requirement of transparency. The walls of that hole Brett is digging are collapsing.

I'm having trouble making sense of that last comment, unless it's simply an indication that Shag is so determined to mind fault with anything I say that he just makes random objections if he can't think of anything relevant.

Seriously, what IS the relevance of that remark?

Brett, your line of comments has been inane. Each time you get taken down, you dig in another direction, only to be taken down again. First you seemed enamored of the Articles and down on the Constitution for not following the rules of the Articles. Then you temper and accept some of the changes made by the Constitution, apparently realizing the inanity of your earlier position. Perhaps you can best be described as a mugwamp on the fence between the Articles and the Constitution. Your comments are irrelevant. Your complaint with Congress re: Article V of the Constitution is hard to swallow, especially with the unanimity requirement for amending the Articles.

I like the idea of transparency, but where in the Constitution is there a specific provision requiring such? I had asked because of your past insistence upon originalism in interpreting the Constitution, as apparently you don't like reading between the lines.

what must be taken into account is that, at least at the federal level, and to a lesser degree at the state, politicians systematically differ from the general public in their views of a number of issues.

Madison expressly argued Federalist 10 that this was a good thing. Representation was intended as a key feature insulating the US system from the weaknesses of "pure" democracy.

An obvious example of this would be the balanced budget amendment. That's frivolous to anyone who understands economics, regardless of its popularity in the nation. Separating the chaff from the wheat justifies Madison's argument.

Now, this won't be true in all cases, most particularly when the interests of Members are directly involved (e.g., in cases like term limits). Those might need to be handled differently.

Shag, perhaps I can best be described as being read by somebody, (you) who is constitutionally incapable or unwilling to make sense of anything they read which they suspect they might disagree with.

My position is that, to quote a brilliant observation, "Democracy is the worst form of government, except for all the others that have been tried." to which I'll add, and, to the extent feasible, it's better still to not be governed.

But democracy can't work without transparency. Government can work without it, of course, but only by becoming less democratic. Government works very well without democracy, actually. It just tends to work by means, and to ends, which are kind of hard on the "demos", because that's the role of the democracy, constraining the means and ends of government be more favorable to the population than unconstrained government typically will be.

As for my view of the Articles and the Constitution, I believe the Constitution was better than the Articles, but that something midway between the two might have been better still. And might have been the result of that first convention, had a total lack of transparency not made it feasible for them to conspire to do something rather different from what they'd been sent there to do.

As for the Constitution, manifestly a flawed document, as all real world documents are. Still, as another wag once said, "The U.S. Constitution may be flawed, but it's a whole lot better than what we have now.” Living constitutionalism isn't an alternate way of interpreting a constitution, it's an alternative to having a constitution.

How did Brett's:

" ... to which I'll add, and, to the extent feasible, it's better still to not be governed."

work in the Garden of Eden? His "to the extent feasible" are weasel words. Perhaps Brett thinks in a nation of 300+ million there is no need for governance.

And Brett's fence-posting on the Articles versus the Constitution:

" ... but that something midway between the two might have been better still."

calls for an identity by Brett of what would have been better, not with the benefit of hindsight (which is not always 20-20), but with Brett's seemingly originalist ability to put himself into the mindset of the founders/framers/ratifiers back in 1787 in determining what may have been necessary compromises to resolve the concerns that led to and were being addressed at the Convention.

And perhaps Brett can identify the "wag" who came up with this inane quote he provided:

"The U.S. Constitution may be flawed, but it's a whole lot better than what we have now.”

That "wag" may be the tail of the dog. (Just think of slavery.)

And it should be noted that Brett seems to read between the lines when it suits his purposes as he neglects to identify any specific requirement in the Constitution for transparency.

I would only be required to identify such a requirement, if I were stupid enough to believe that the Constitution mandates everything government should do, and prohibits everything it should refrain from.

Transparency is necessary for democracy to work, but it is not mandated by the Constitution. Hey, I did say the Constitution was a flawed document, didn't I?

Did anyone else notice that Brett did not identify the "wag" whom he quoted? Granted, Brett did not specifically state that he agreed with the wag; nor did he say he disagreed with the quote. Did Brett drop in the quote to make a point or to just muddy the waters with another inanity?

Could it be that I didn't identify the "wag", because I don't know the identity? But simply found it apropo to the current circumstances?

I gather you're trying to imply something, as usual.

Again, Brett uses a weasel word with "apropos." Maybe Brett agrees with the quote; maybe he doesn't. How convenient. I recall a wag saying: "One can be both bald and hare-brained." Apropos?

My final comment to the relentless Black Knight: Rather than being a weasel word, I said exactly what I meant, even if what I meant was not to your satisfaction.

Perhaps I should refer to Brett as the White Knight, but not in the investor context.

Like Richard M. Nixon, Brett meant what he said, but one has to read between the lines apparently to understand whether that meant he either (a) agreed or (b) disagreed or (c) whatever, with the unknown wag's quote.

"They amount to a self-perpetuating political class who are able to defeat representative democracy on matters important to them."

They ARE the "representatives" here so I don't know how they are "defeating" things by preventing pure democracy from winning out. Mark Field is correct.

It also is duly noted that they are "self-interested" like we all are in some fashion. They are not "self-perpetuating" -- the change of the guard over the years is seen here.

And, overall, again, the people as a whole don't seem to do much to force the issue. When a few of them actually protest in the streets, even some who claim to be against the PTB ridicule them. We are at bottom a fairly conservative people. The Declaration of Independence points out the dangers of major change.

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