Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
you enormously for inviting me to comment on your new book. While I believe the U.S. constitutional
system is badly in need of some reforms, I think the U.S. Constitution, as
amended, is the best such document in
any of the G-20 constitutional democracies today, and I think you both
seriously underestimate its comparative virtues.
not only disagree that the U.S. system is dysfunctional, but I also think it is
a splendid success that should be widely copied.
shall comment respectively on: 1) the world scene today; 2) the undeniable
success story of the U.S. Constitution; 3) the reasons why I do not agree with you that the
Constitution is dysfunctional; and 4) some reforms, which would make the
Constitution work better.
The World Scene in 2019
must begin by stating a preference for the most populous and territorially
large democratically self-governing polities possible.
would eventually like to see the emergence of a weak global federal democracy
of the G-20 constitutional democracies i.e.: 1) the United States; 2) the
United Kingdom; 3) France; 4) Germany; 5) Japan; 6) Italy; 7) India; 8) Canada;
9) Australia; 10) South Korea; 11) Brazil; 12) South Africa; 13) Indonesia; 14)
Mexico; and 15) the European Union.
believe populous and territorially large democracies will accomplish four
they will reap huge economies of scale in running: 1) an international Space
Station and Lunar and Mars exploration function; 2) they will reap huge
economies of scale in running an international ballistic missile defense
against militant oligarchies like China and Russia and an effective regime for
ending terrorism from the Middle East; and 3) they will reap huge economies of
scale in setting up airports, highways, internet systems and other great public
works and in facilitating global commerce.
I believe a G-15 federal government could redistribute wealth globally whereas
the current system lead to races to the bottom and to a host of collective
action problems in dealing with races to the bottom in redistributing wealth;
and races to the bottom in overfishing of the seas; in energy production; and collective
action problems hindering the development of missiles to destroy dangerous
asteroids, which might collide with our planet.
I believe a G-15 federal government could address problems like Global Warming;
air and water pollution and trash in space in low earth space orbit. Nations today generate negative externalities
for one another in the form of excess carbon dioxide production, which a global
federation might stop.
I believe a G-15 federal government would be more protective of individual
human rights than are the current separate nation states essentially for the
reasons James Madison expounds in Federalist
10. Expand the polity; and you
increase the number of small interest groups.
As you do so, they likelihood that one interest group will ride
roughshod over the others goes way down.
course, there are powerful reasons to keep a Global G-20 Democratic Government
federal and limited in powers. First,
the fifteen nation states have different cultures, traditions, tastes
preferences, and they face different unique problems. Second, one might want the 15 nation states
in a United States of the world competing
with one another by experimenting with
different economic, social, and cultural policies for the allegiance of
citizens and businesses. Third, it is
easier and less costly for voters to monitor nation state governments than a
Global Federal Government. For this
reason as well, power should be decentralized.
The United States Today is Not Dysfunctional
United States of America is today the third most populous country in the world
after China and India, and it is also the third largest territorially after
Russia and China if one subtracts, as one should, Tibet from China. The United States is miraculously held
together by its division into 50 small nation states rather than say four
mega-states like: 1) the Northwest; 2)
the South; 3) the Midwest; and 4) the West.
A four state U.S.A. would lead to immediate secession of either the
Northeast or the South. It is only our
division into 50 small states that holds the U.S. together and allows Americans
to reap the four great benefits of a
Federation: 1) lower economies of scale; 2) fewer races to the bottom and
collective action problems; 3)
correction of negative externalities caused by one state against another; and
4) Federalist 10 protection of
minorities civil rights. I shudder to
contemplate, much less welcome, a breakup of the American federation, as Sandy
Levinson does. I think the world should
move in the opposite direction
towards more populous and territorially large representative democracies and
not toward Levinsonian anarchy, small direct democracies, and dystopias.
United States of America has the highest GDP per capita of any of the G-20
constitutional democracies. According to
the IMF, in 2018, out of 180 countries in the world the GDP per capitas of the
G-20 Nations ranked as follows: 1) the
U.S. was 10th behind only the Gulf states; Switzerland; and Hong
Kong 2) Germany was 16th; 3) Australia was 17th; 4) Canada was 21st
; 5) France was 25th ; 6) the U.K. was 26th; 7) Japan was
28th; 8) South Korea was 29th; 9) Italy was 33rd;
10) Russia was 49th; 11) Mexico was 63rd; 12) China was
73rd; 13) South Africa was 89th; 14) Brazil was 80th;
and 15) India was 119th.
Americans are by far and away the most economically productive people on
United States also has one of the lowest
unemployment rates of any of the G-20 nations. See e.g., :
1) U.S. 3.8%; 2) France 8.9%; 3)
Italy 10.6 % ; 4) South Africa 27.5 %; 5) Turkey 10.3 %; and 6) Brazil 13.1%. The unemployment rate in the United States
today is at the lowest level it has been at since 1968. More women and African Americans are working
today in the United States than ever before in American history. The U.S. inflation rate is 2.1%, which is
lowers than: 1) the U.K. at 2.7%; 2) India at 3.8%; 3) India at 3.8%; 4) Mexico
at 6%; 5) South Africa at 53%; and 6) Turkey at 24.52%. Added together the U.S. has the lowest misery
rate: unemployment rate plus inflation rate of any of the G-20 constitutional
the U.S. Constitution is both the oldest
and the shortest written
constitution in the world, even after accounting for all of its 27
U.S. was the first nation in the world to set up a democracy, in 1789, and it
was the first nation in the world to grant all white men the right to vote, and
to grant to all African American men a constitutional right to vote in 1870.
U.S. abolished feudalism and monarchy or theocracy in 1789, earlier than did
any other nation! And, in 1868, the U.S. banned all hereditary caste systems
(including the Black Codes) at a time when feudalism continued to exist in
Europe (as it does to the present day in the U.K.) and at a time when the Hindu
Caste system prevailed in India.
United States was the second G-20 constitutional democracy, after only
Australia, to give women the right to vote in 1920. Women did not get the right to vote until
1928 in the U.K. and until after 1945 in Germany, France, Japan and Italy.
late as the Civil War (1861-1865), the United States was still the only democracy in the world. This is why President Abraham Lincoln said at
the end of the Gettysburg Address that the outcome of the U.S. Civil War would
determine “whether government of the people, by the people and for the people
shall perish from the earth. When
Lincoln spoke those words: 1) the Revolutions of 1848 in Europe had all failed;
2) the Emperor Napoleon III governed France; 3) the Emperor of Japan governed
that island country; and 4) in the U.K., only one-seventh of all men could vote
for the House of Commons whose actions were subject to veto by the oligarchic
House of Lords until 1911.
the human rights front, Americans confronted and eliminated de jure racial discrimination in
employment and academia between 1948 and 2019; the U.S. recognizes a federal
constitutional right to same sex marriage unlike the European Court of Human
Rights; the Supreme Courts of India, Japan, Indonesia, and South Korea in a
world where Russia, China, and all Islamic countries persecute LGBTQ
U.S. “melting pot” has absorbed waves of immigration from Ireland, Italy,
Southern Europe, and Eastern Europe in the 19th and 20th
centuries, and it is now absorbing new waves of immigration from Latin America,
Asia, and even Africa. Essentially, no Americans try to emigrate out of the
United States while millions of people from around the world try to immigrate
to the United States. People vote
with their feet, and they clearly do not buy Professor Levinson’s claim that
the U.S. constitutional system is dysfunctional.
the same time that the U.S. has secured the Blessings of Liberty to ourselves
and our posterity, the U.S. has also been the Great Arsenal of the
Democracies. We fought and won World War
I; World War II; the Cold War; and the War against Al Qaeda. It is the American military that, today,
protects the European Union from Russian invasions and South Korea, Japan,
Indonesia, India, and Australia from Chinese invasion. We speak softly but carry a big stick. We keep the Global Peace, but we do not try
to subjugate the democracies of the world into an American version of the
Why Sandy Levinson is Wrong to Criticize Veto
Levinson’s attack on the U.S. Constitution is a reprieve of the Progressive Era
attack between 1890 and 1937. Levinson
thinks the Framers of the Constitution were rich white men who set up a system
with many veto points, i.e., 1) bicameralism; 2) the president’s veto power;
and 3) judicial review all of which doom his desire for soak the rich wealth
redistribution of the kind attempted by: 1) the Bolsheviks in the former Soviet
Union; 2) by Mao Ze Dong in communist China; 3) by Ho Chi Min in Vietnam; 4) by
Jim Jong un in North Korea and by his father and grandfather; 5) by Fidel
Castro in Cuba; and 6) by Ceasar Chavez and by Nicolas Maduro in Venezuela.
the examples above suggest, I have a very dim view of what would be the end
result of Levinson’s reform program. In
the 20th Century, we took two populations; of the same ethnicity;
speaking the same language; and with the same history and culture, and we
divided them into a free market half called, West Germany and South Korea; and
a radically egalitarian half, called East Germany and North Korea. The results are now in on that
experiment. Free market systems with
some inequality thrived; egalitarian societies with command and control
economies nose-dived. In the wake of
this history, the onus is on Levinson to show why any similar junking of checks
and balances and experimentation with equality would not produce the same
outcome in the U.S., as it it produced in East Germany and North Korea.
usual response to this is to argue in favor of the U.K. parliamentary system,
as Woodrow Wilson did. That country has had an essentially two party system
where the party that wins control of the House of Commons has a five year
dictatorship to make even constitutional changes. Pursuant to that model, Tony Blair with 43%
of the vote nationwide won a five year term during which he devolved power to
Scotland, Wales, and Northern Ireland; reduced the number of hereditary peers
in the House of Lords; and paved the way for his successor David Cameron to: 1) call for a popular referendum of people
then living in Scotland on Scottish independence, a move which was barely
staved off with only 55% voting to stay in the U.K., and, then, 2) to call a
referendum on whether Britain should vote to leave the U.K., which she did by a
vote of 52% for Brexit and 48% opposed.
my humble opinion, the British Constitution is idiotic in giving political
parties with 43% of the vote nationwide the power to make constitutional
changes. I cannot think of a stupider
way of allocating power or of a stupider set of outcomes even if I shared Sandy
Levinson’s preference for egalitarian outcomes, rather than for equality of
opportunity, which I do not.
standard academic response to what I just said is to follow Bruce Ackerman and
favor the German constitutionally-constrained parliamentary model with a
powerful Constitutional Court, which Ackerman claims is preferable to either
the U.S. or the U.K. models. The current
German Constitution is the best Constitution Germany has ever had, but given how
badly the two prior German Constitutions worked out that is not saying very
much. The current German Constitution
sets up its own system of checks and balances with bicameralism on most votes; strong state federalism; and judicial
review. What the German Constitution
lacks, however, is energy in the executive, which is why Germany is dependent
on the United States for foreign policy and military support. Germany cannot even exert leadership in the
European Union much less than against Russia.
its last parliamentary election, the voting outcomes were as follows: The Christian Democrats and the Christian
Social Union won 32.9% of the vote,
their worst showing ever; the Social Democrats won 20.5% of the vote, their
worst showing ever; the Free Democrats won 10.7% of the vote the government,
but they were frozen out of ; the Left and the Greens each won 9% of the vote,
among their best showings ever, but they too were frozen out of the government;
and 13% of the vote went to the Alternatives for Deutchsland Party (AFD), which
became the official opposition with the third best showing of any party.
AFD is an anti-Islamic, anti-semitic, homophobic political party. Proportional representation in Germany is
producing the same kind of instability that led to the collapse of the Weimer
Republic in Germany in 1933; the collapse of the French Fourth Republic in
1958; and the revamping of Italian electoral rules after 1991. It is not clear that Germany can govern
itself, safely, much less than lead an Arsenal of the Democracies or even the
European Union. I predict the AFD will GAIN seats in the EU parliamentary elections.
Levinson would no doubt counter that the election of Donald Trump, which has led to an economic boom, is
just as alarming as is the rise of the AFD in Germany. This is quite simply not true.
of all, we peacefully elected governors and state legislatures in 2017 in
Virginia and New Jersey, and the Democrats swept both states by huge
margins. Republicans surrendered power
peacefully. Second, we peacefully held
mid-term elections in 2018, and the Democrats won control of the House of
Representatives in a landslide. Again,
Republicans surrendered power peacefully.
Score two for veto blocks!
we peacefully held U.S. Senate elections in 2018, and Democrats lost in
Indiana, Tennessee, Missouri, Florida, and Iowa because of their mistreatment
of Trump Supreme Court nominee Brett Kavanaugh.
We would probably have a Democratic majority in the Senate today if it
were not for the Kavanaugh hearings riling up and turning out the Republican
base. Levinson and other legal academics
need look no further than the end of their nose if they want to understand why
in 2018 we elected a Republican Senate.
me comment, however, on just a few of the alleged flaws of the U.S.
Constitution, according to Levinson.
First, it has too many veto points.
I disagree. I think fleeting
passions of the moment should not become federal law but only matters as to
which there is a settled national consensus that manifests itself across the three elections that we hold two years
apart under our Madisonian Constitution.
This rolling series of three elections, held two years apart has all the
virtues of a tracking poll versus a one off at a time poll. We run our democracy using a tracking poll to
discern the Volonte General whereas
the U.K.; Germany; and France use a one off for every five years poll. It should not come as a surprise to anyone
that the one off at a time poll less accurately discerns the Volonte General than does the tracking
poll of three elections held two years apart.
It leads to a bipartisan consensus on a whole host of sub-constitutional
as to which there is such a consensus include: 1) Social Security; 2) Welfare
payments for the poor; 3) the Civil Rights Act of 1964; 4) most of the Voting
Rights Act of 1965; 5) The Clean Air and Clean Water Acts of 1970; 6) Medicare
and Medicaid; 7) access for women to abortion; and, most recently, access to
same sex marriage. NONE of these matters
is under any threat today from either President Trump or the Supreme
Court. Those who think otherwise will
soon be proven wrong.
Levinson thinks presidential power is too large, and I and most conservatives
agree. The solution is to go through the
U.S. Code and reclaim many of the powers, including the power to declare states
of emergency, from the president and return these powers to Congress. At the same time, the notion that Trumpian
presidential power is a threat to democracy is a gross misstatement of the
facts. Trump cannot build his wall on
the Mexican border because a Republican Congress would not appropriate the
money to do so between 2017 and 2019.
Trump cannot lift President Obama’s sanctions on Putin and the Russian
oligarchs because Congress by an almost unanimous vote of both Houses in February
2017 codified them into federal law. Trump
had no control whatsoever over the Justice Department for the first two years
of his term because Senate Republicans made him keep Jeff Sessions in
place. And, unlike Barak Obama in Libya; George W. Bush in Iraq; Bill Clinton
in Bosnia; George H.W. Bush in Kuwait and Panama; and Ronald Reagan in Granada,
Trump has NOT EVEN TRIED to start an unconstitutional war. Trump made no effort to disrupt the
midterm elections, and they went against the party in power in the White House
as so often they do.
sum, President Trump has been checked and balanced to the point where he is
almost irrelevant. In contrast, the
flawed electoral systems of the United Kingdom and of Germany may very well
have ruined those nations for good.
complains bitterly about the U.S. Senate’s deviation from the principle of one
person, one vote: But the Democrats
benefit at least as much from this arrangement as do the Republicans, which is
shown by considering the numbers of low population States. The six low population states, which lean
Republican include: 1) Wyoming; 2)
Alaska; 3) Montana; 4) Idaho; 5) North Dakota; and 6) South Dakota. The six low population states which lean
Democratic include: 1) Vermont; 2) Rhode
Island; 3) Delaware; 4) New Hampshire; 5) Vermont; and 6) Hawaii. The low population states effectively cancel
each other out, which is one of many reasons why abolition of the Senate would
be a very bad idea. I would, however,
get rid of the Senate filibuster of legislation for reasons I will explain
4. Useful Reforms to Consider
I would get rid of the Senate filibuster of legislation, which I think
introduces one veto point too many, and too arbitrary for the benefits of the
rule to exceed the cost.
I would trim presidential power by returning to Congress broad powers that it
has unwisely delegate to the president or the administrative agencies.
I would support judicial review not only of the equality in population of U.S.
House of Representatives seats, but also of the “compactness” of the lines by
which districts are drawn. Under the
current system 40% of the seats are safely Democratic; 40% are safely
Republican and only 20% are genuinely up for grabs. Safe Democrats position themselves way to the
left to stave off primary challenges while safe Republicans position themselves
way to the right to stave off conservative primary challenges.
I would amend the Constitution to establish an 18 year term limit for Supreme
Court justices; to fix the size of the Court at nine justices; and to provide
that there will be one vacancy every two years during a president’s four year
term. The first vacancy should occur on
June 30th of the year in which the President was elected. The second vacancy should occur on June 30th
of the President’s fourth year in office.
Neither Presidents nor senators should be allowed to draw their
salaries, access their benefits, or receive any sum of money from any other
person until the Supreme Court vacancy in question is filled.
Steven G. Calabresi is Clayton J. and Henry R. Barber Professor of Law at Northwestern-Pritzker School of Law. You can reach him by e-mail at s-calabresi at law.northwestern.edu Posted
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