Thursday, June 06, 2019

Reply to Critics-- Part One

Sandy Levinson

For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).

Given that the critiques of our book Democracy and Dysfunction totaled more than 40 single-spaced pages, it seems advisable to offer my own replies in several separate postings, partly to make them of manageable size and to allow me to address at more than scattershot length the various points that are made.  I begin with the critiques that are offered by Eric Posner, Mark Graber, Gerard Magiacca, and Julia Azari.  

Eric suggests that there are relatively few genuine differences between Jack and myself, that it would have been more interesting had we engaged in the same sort of epistolary exchanges with persons whose views are significantly different from our own.  Not surprisingly, I think that he underestimates the extent to which Jack and I disagree, even if we do take care to recognize the strengths of each other’s arguments.  But it’s probably true that, overall, we elaborate arguments that we have been making, usually to the world but often to each other as well in private conversations, over the past decade.  Still, for those who have not been assiduously reading our work over the past decade, I do hope that the book offers a readily accessible overview of our arguments, including the degree to which I continue to assert the importance of fundamental constitutional reform as against Jack’s more optimistic, in context, focus on American political culture and the possibility of regenerative social movements.

I readily agree that it would be interesting to have epistolary encounters of the kind that Eric suggests, and I’d happily begin with Eric himself.  For example, I am curious about the degree to which Eric has changed his own mind about the phenomenon of what he and Adrian Vermeule dismissed in their book The Executive Unbound:  After the Madisonian Republic (2010): i.e., any fears that the thoroughly Schmittian executive they defended would in fact generate the possibility of “tyranny” within the United States.  Indeed, they offered the dismissive epithet of “tyrannophobia” with regard to such fears. I share their view that Schmitt, whatever his obvious defects as a human being, has much to teach analysts of contemporary government and constitutionalism, but I did think there was a certain insouciant exuberance to their embrace of the nearly legally unfettered executive.  Much to Eric’s credit, he has (unlike his co-author) become a leading critic of Donald Trump.  At the very least, he appears far less complacent than was the case in what appears now the long-ago days of 2010!

I would also relish the opportunity to engage in extended exchanges with my friend Randy Barnett, who titled his own book The Republican Constitution in part as a reply to my own insistence about ours being an “undemocratic Constitution.”  Similarly, I am especially grateful for Steve Calabresi’s extended polemic about the virtues of the U.S. Constitution, which I shall address in my next response.  And I have noted on the conlawprof listserv my genune gratitude for the presence on it of University of Savannah Law School Professor Joseph D’Agostino, one of the few persons within the legal academy who appears to be an unabashed supporter of “illiberal constitutionalism” of the kind identified, say, with Victor Orban and other European authoritarians.

One of the realities of our present situation is that conventional categories of “right” and “left,” “liberal” and “conservative,” are being tested by the challenge of genuinely responding to the demons that Donald Trump and his truly deplorable enablers (and useful idiots) have unleashed.  Many of my personal contemporary heroes are conservatives, like Michael Gerson, who have been willing to rupture long-established associations and friendships because of their worry about what Donald Trump is doing to the country.

Similarly, it is even easier to agree with Mark and Gerard (and several other writers) that it is parochial to focus only on the United States with regard to the challenges presented to the liberal constitutional order.  I am delighted, for example, to take this opportunity to tout the book co-edited by Mark Graber, Mark Tushnet, and myself, Constitutional Democracy in Crisis?published by the Oxford University Press last fall.  It contains 38 essays, by 42 authors, about a number of countries across the world as well as broad thematic topics like globalization, immigration, and the like.  Jack and I have earlier quoted Kipling’s question “what do they of England know who only England know?” and it is surely the case that no serious analyst of our own discontents can ignore what is taking place around the world.  My own preference for parliamentarianism over presidentialism is surely tested by what has happened (or is taking place before our very ideas) in Great Britain, Israel, or Hungary.  

Julia Azari titles one of her sections “the limits of institutions,” and she writes that although “[i]t may be heresy to say this in some political science and law circles, but perhaps the institutions are not the central problem.” This, I think, is Jack’s ultimate view, and I suspect it is widely shared, partly because institutional change seems such a hopeless prospect at least within the United States.  Perhaps the key phrase, though, is “central problem.” It is certainly true that I have emphasized at least since my 2006 book Our Undemocratic Constitution the need to spend far more time thinking of our fundamental structures (and institutions) and to reduce our proclivity to define “the Constitution” almost exclusively as a system for allocating rights. This also leads, of course, to the almost grotesque over-emphasis on the Supreme Court and its decisions.  If anything, I am more dismayed than ever by the way that “constitutional law” is taught within the legal academy—or discussed by the punditry and political candidates—and the concomitant unwillingness to address either the legitimacy or the practical consequences even of the indefensibly apportioned Senate.  (I’ll address this further in my reply to Calabresi.)  

That being said, it is undoubtedly true that one reason I keep shouting into the wind is my perception that there are in fact so few persons willing to engage in the conversation I think is necessary.  It is not simply that most people do not see our political institutions as a “central problem”; they appear not to view them as even a significant albeit peripheral problem.  As a political scientist, the last thing I would want to argue is that our institutions are the sole cause of our problems.  That is truly an indefensible position.  Indeed, I’m willing to concede that they may explain only, say, 10 or at most 20% of the reasons for our malaise.  And it may also be the case that were the socio-political order otherwise functioning well, then the costs of our institutional deficiencies would be quite tolerable, a “cost of doing business” that could easily be ignored in our everyday lives.  But we should also be aware that what may be tolerable even most of the time can, given the right concatenation of circumstances, prove fatal to our existence. I am fond of offering the analogy to the interactions of medicines.  Like most males, I have taken baby aspirin for many years in reliance on medical advice that, whatever the slight risks, it provides valuable protection with regard to a variety of potential diseases, including heart attacks.  However, I’m also aware that under some specific circumstances—having hip replacement surgery, for example—one should cease taking aspirin because its role in thinning blood and thus preventing blood clots could prove dangerous during surgery, even perhaps fatal.  Similarly, one should not take aspirin if taking a variety of other drugs that may also be indicated for given medical conditions. So it is the case that our institutions may on occasion be helpful or, more likely, generally irrelevant, but it is also the case that under some circumstances, they may interact with other realities of the socio-political system in ways that will constitute a clear and present danger to our flourishing, and I obviously believe that is the case at present.  What has turned me into something of a crank is the degree to which constitutional reform is dismissed even as a possible topic of discussion by such otherwise probing critics of our polity as, say, Norman Ornstein and Thomas Mann or Stephen Levitsky and Daniel Ziblatt.  

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