Wednesday, November 06, 2013

Conference on America’s Political Dysfunction: Constitutional Connections, Causes, and Cures


Jim Fleming sends information about an upcoming conference at B.U. Law School. Several regular B'zation contributors will be speaking, including Sandy Levinson, Mark Graber, Joey Fishkin, Linda McClain, Mark Tushnet, Ken Kersch, and myself:

America’s Political Dysfunction: Constitutional Connections, Causes, and Cures

Friday, November 15 & Saturday, November 16, 2013

In recent years and especially in recent months, many have despaired over America’s political dysfunction. A conference at University of Texas asked, “Is America Governable?” Some, like Mann and Ornstein, have contended that “it’s even worse than it looks.” Others, like Levinson, have claimed that we face a “crisis of governance.” Schlozman, Verba, and Brady have criticized “the broken promise of American democracy,” Gutmann and Thompson have lamented the breakdown in “the spirit of compromise,” and Lessig has argued that we have “lost” our republic through the corruption of money.

More generally, there is considerable talk of dysfunction, breakdown, and failure in the air these days. Just consider these titles: Bruce Ackerman, The Failure of the Founding Fathers, not to mention The Decline and Fall of the American Republic; Ronald Dworkin, Is Democracy Possible Here?; Alan Wolfe, Does American Democracy Still Work?; and Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), along with Framed: America’s 51 Constitutions and the Crisis of Governance.
We plan a conference that will assess such claims about dysfunction, breakdown, and failure. But unlike some prior conferences, it will focus on constitutional connections, causes, and cures. Taking up the forms and manifestations of dysfunction, breakdown, and failure, the conference will ask “What, if anything, does the Constitution have to do with all this?” For example, are we experiencing a constitutional failure, as distinguished from a moral failure, a political failure, an institutional failure, or a failure of policy that may or may not be directly related to the Constitution? Are the lamented dysfunction, breakdown, and failure caused by the Constitution? Do they stem from a feature or defect of the Constitution? Do they result from constitutional requirements? Are they made more likely by our constitutional design?
The conference will address not only whether there are such constitutional connections to and causes of dysfunction, but also whether any proposed cures would likely alleviate it. For example, Putnam has proposed building social capital. Sandel and Ackerman have called for reinvigorating the civic and deliberative dimensions of political and constitutional discourse and practice. Seidman has proposed “giving up on the Constitution.” Levinson, Lessig, and Sabato have proposed amending the Constitution or holding a constitutional convention to adopt a new one. Will such proposals alleviate dysfunction or will the conditions giving rise to them virtually insure that they will fail?
The papers and proceedings will be published in Boston University Law Review.
This conference will take place in Barristers Hall. All – including not only professors, law students, graduate students, and undergraduates, but also alumni and the general public – are welcome to attend. To register, please contact Elizabeth Aggott, Events & PR Manager, at If you have academic questions about the program, please contact Professor James E. Fleming at

Friday, November 15
9:15 a.m.-9:30 a.m.: Welcome and Introduction
9:30 a.m.-11:00 a.m.
I. Is dysfunction an illusion? Is all the talk about dysfunction misconceived? Perhaps this is simply how our constitutional system operates. Or maybe we are instead in a period of transition. If so, to what?
Sotirios Barber, University of Notre Dame Department of Government
Mark Graber, University of Maryland School of Law
Gerald Leonard, Boston University School of Law
Nancy Rosenblum, Harvard University Department of Government

11:15 a.m.-12:30 p.m.
Keynote Address: Cass Sunstein, Harvard Law School
12:30 p.m.-1:30 p.m.: Lunch
1:30 p.m.-3:00 p.m.
II. Is the Constitution responsible for electoral dysfunction? (Not only through its provision for the electoral college but also through its failure affirmatively to guarantee an equal voice in the national political process and prevent the corruption of money and hyperpartisan gerrymandering?)
Hugh Baxter, Boston University School of Law and Department of Philosophy
Guy-Uriel Charles, Duke University School of Law
Joseph Fishkin, University of Texas School of Law
Ellen Katz, University of Michigan Law School
Kay Schlozman, Boston College Department of Political Science, & Sidney Verba, Harvard University Department of Government
3:15 p.m.-4:45 p.m.
III. Has the Constitution exacerbated the crisis of governance? (Have what Levinson calls the “hard-wired features” of the structural Constitution made America not only undemocratic but indeed ungovernable? Have they fostered the politics of extremism? Have they somehow undermined the spirit of compromise?)
Jack Beermann, Boston University School of Law
Douglas Kriner, Boston University Department of Political Science
R. Shep Melnick, Boston College Department of Political Science
Stephen Skowronek, Yale University Department of Political Science
Jay Wexler, Boston University School of Law
5:00 p.m.-6:30 p.m.
IV. Has the Constitution fostered a pathological rights culture of rights without responsibilities and regulation? The case of the right to bear arms and gun control.
Joseph Blocher, Duke University School of Law
Robert Cottrol, George Washington University Law School
James Fleming & Linda McClain, Boston University School of Law
Richard Thompson Ford, Stanford Law School
Robin West, Georgetown University Law Center
Saturday, November 16
9:00 a.m.-10:45 a.m.
V. Utopia as Dystopia? (Have we reached a dysfunctional situation in which disagreement about constitutional visions is so fundamental that one side’s ideal is the other’s nightmare, and vice versa? The case of radically opposed visions of federalism: a mini-symposium on Sotirios A. Barber’s The Fallacies of States’ Rights and Michael Greve’s The Upside-Down Constitution).
Sotirios Barber, University of Notre Dame Department of Political Science
Michael Greve, George Mason University School of Law
David Lyons, Boston University School of Law and Department of Philosophy
Abby Moncrieff, Boston University School of Law
Larry Yackle, Boston University School of Law
11:00 a.m.-12:30 p.m.
VI. Are the American Constitution and constitutional experience exceptional when it comes to dysfunction? What can we learn from other nations’ constitutions and constitutional experiences?
Yasmin Dawood, University of Toronto Faculty of Law
Ran Hirschl, University of Toronto Department of Political Science and Faculty of Law
Mark Tushnet, Harvard Law School
Graham Wilson, Boston University Department of Political Science
Katharine G. Young, Boston College Law School

12:30 p.m.-2:00 p.m.
Lunch Address: Jack Balkin, Yale Law School
2:00 p.m.-3:30 p.m.
VII. What are we to do about dysfunction? Proposed cures and their constitutional connections.
Richard Albert, Boston College Law School
Ken Kersch, Boston College Department of Political Science
Gary Lawson, Boston University School of Law
Sanford Levinson, University of Texas School of Law
Frank Michelman, Harvard Law School