Friday, June 07, 2019

Reply to Critics-- Part Two: Illuminating tensions in Steven Calabresi's arguments

Sandy Levinson

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

There is much that could be said about the contribution of my friend Steven Calabresi to our symposium.  As his title states forthrightly, he believes that "the U.S. Constitution is Not Dysfunctional."  I obviously disagree, though I suspect that most readers of Balkinization really need no elaboration of all of the ways that I think the Constitution is dysfunctional--and getting more so everyday--as, for example, the dangerous irrelevance of the Impeachment Clause is fully revealing itself.

I could raise a number of quibbles about his particular readings of our past and of key documents that we rely on to understand it.  I do not agree that the Framers in 1787 had the slightest intention to set up anything that we in the 21st century would recognize as a "democracy."  The best one can say is that they were more open to a relatively expanded electorate than was the case in, say, Great Britain at the time (or for a full 75 years afterward), but no system founded on the legitimacy of chattel slavery could possibly be described as "democratic."  At a more theoretical level, perhaps, I think that Federalist 10 is the most vigorous attack ever written on the advisability of relying on the American states to protect the liberties of unpopular minorities.  Instead, they are presented as cesspools of factional governance, where it becomes all too easy for a single faction to capture control of the state and to use its coercive powers to make things miserable for groups it disdains.  This is, after all, why Madison argued in behalf of an "extended republic."

There are many other specifics that I would want to challenge.  He is correct, for example, in noting that the twelve lowest population states are currently split six-six between Democrats and Republicans.  But I think it telling that with the exception of Hawaii and, possibly, Rhode Island, none of the twelve can be described as richly multi-cultural and looking much like contemporary America.  Surely one reason that Bernie Sanders is so relatively inept in talking about race, for example, is that he represents a stunningly white (95%) state, not to mention one with the lowest fertility rate and an ever-increasing percentage of older folks who are, frankly, unlikely to contribute much to the economy.  (There is a reason that a full 70% of graduates of the University of Vermont emigrate from the state.)  One might also understand a bit better why Joe Biden is currently having to explain why he was such a faithful representative early in his career of a basically segregationist Delaware--a slave state, albeit a loyal one, during the Civil War.

I strongly commend to one and all a just-published essay by Yale law professor David Schleicher "Vermont as a Constitutional Problem."  There is simply no reason to allow Vermont, the second-smallest state (behind Wyoming) in population and number 50 in terms of Gross State Product, to have the same voting power in the Senate as does Texas or California.  As Schleicher notes, Vermont has a smaller population than 28 cities in the United States (including Austin, Texas, whose metropolitan area is approximately three times the population of Vermont) and 107 counties. The fact that I far prefer Pat Leahy and Bernie Sanders to John  Cornyn and Ted Cruz is irrelevant to determining whether it truly serves the national interest, either now or, even more certainly in the future, that such a grotesquely unrepresentative state has 2% of the total vote the Senate.  But I don't think this is what is in fact most interesting or even necessarily worth discussing about Calabresi's essay.

Instead of quibbling on some of his specific treatments of the American past, I think it is more worthwhile to explore two aspects of his posting.  Both of them are extremely important given the sometime willful parochialism of the contemporary American form of conservatism with which he is probably still identified, as one of the proud founders of The Federalist Society.

The first, and most obvious, is simply that, unlike many devotees of the late Justice Scalia, Calabresi does not dismiss the relevance of looking at comparative constitutionalism and empirical evidence. As it happens, he finds more to praise in the U.S. Constitution than I do when engaging in such comparativism, but the more important point is that he is quite willing to look at a variety of data and, presumably, to be led where the evidence takes him rather than simply presume, as an unchallengeable given, that the U.S. Constitution is in fact absolutely terrific and that evidence is really beside the point. Indeed, he concludes his essay by advocating a number of constitutional changes, including amendments, with which I am in substantial agreement.

We both strongly agree, for example, on the advisability of getting rid of full-life tenure for  Supreme Court justices.  Our only disagreement is whether one could do this via a cleverly designed legislative statute--I am in the minority that thinks this possible--or whether it would in fact be necessary to run the quite likely fatal hurdles set up by Article V to eliminate life tenure.  I share his view that the filibuster does not really serve us at all well in the 21st century; my only hesitation involves the reality that the Senate is ever more illegitimate in the way that power is allocated.  It is now commonly agreed, for example, that by 2040 a full 70% of the population will live in no more than fifteen states, with 30% of the senators, while the 30% in the 35 states will get 70% of the votes in the Senate.  This means, obviously, that one can imagine filibusters led by senators who by any criteria are far more representative of the majority than, say, even 60 senators who could, in theory, represent only 25% of the population by 2040.  And both of us agree that it is past time to "trim presidential power by returning to Congress broad powers that it has unwisely delegated to the president or the administrative agencies."  I'm probably far more accepting of the latter than Calabresi is; my views are similar to those articulated by Adrian Vermeule in his recent book on the administrative state.  But surely there is opportunity much useful collaboration of liberals and conservatives to rein in the powers of the President, and perhaps Calabresi would even reconsider some of his enthusiastic endorsement of a unitary executive that is absent in, say, almost all of the American states and where the United States Constitution is a genuine outlier.

As to the evidence that he addresses, I do find it telling that he omits the rather startling fact that the Economist, in its survey of the degree of democracy present in the countries of the world, now places the United States 25th in the list, in the group of countries labeled "flawed democracies."  We are now behind Japan, Chile, and Estonia, and slightly ahead of Cape Verde and Portugal.  The numbers are close, and one ought not to go overboard on their reliability as indicators.  It is probably like believing there is a great deal of difference between an LSAT score of 167 and 168.  Still, it should be  chastening for Calabresi that we're not even in the top 20 and described as a "flawed democracy."  I, of course, agree wholeheartedly with the description, and I ascribe that in part to our dreadfully flawed Constitution.  But I am curious whether Calabresi believes that the Economist's evaluators are simply and unequivocally wrong, or if, instead, he agrees with the description but ascribes it solely to factors other than the Constitution he clearly loves.

But what is far more interesting about his essay is what I do think can be described as the intellectual schizophrenia it displays about the extent to which we should embrace the parochialism and isolationism that is characteristic of the present Republican Party or, instead, move audaciously into accepting the need for transnational forms of government.  It is to Calabresi's immense credit that he not only opposed Donald Trump's candidacy for the presidency, but, unlike some of his fellow "never-Trumpers," seems unwilling to drink the Trumpian Koolaid based, for example, on the undoubted approval he feels for Trump's judicial appointments.  Whatever his views, he comes by them honestly and expresses them candidly.  That is no small matter.

So now let me turn to what I thin is truly most interesting about his argument, summarized in his overview at the beginning of "the World Scene in 2019."  His endorsement even of "a weak global federal democracy of the G-20 constitutional democracies" is really quite remarkable and worth far more extended discussion than I can give it here.  Part of his argument involves purported "economies of scale" that might be present with regard to meeting certain challenges "in facilitating global commerce."  But what is far more telling, I believe, is his admission that reliance on traditionally "independent states" clutching to their "sovereignty" is likely to be inefficacious (or, more likely, disastrous) in the future, given the challenges we face.  Thus he writes that "I believe a G-15 federal government could redistribute wealth globally whereas the current system leads to races to the bottom and to a host of collective action problems in dealing with raches to the bottom" (emphasis added) in a variety of crucial areas, including responding to "dangerous asteroids" that might threaten the planet.  But, much to his credit--and, of course, totally unlike the Trump Administration--Calabresi also clearly recognizes the importance of Global Warming, not to mention "air and water pollution and trash in space."  "Nations today generate negative externalities for one another in the form of excess carbon dioxide production, which a global federation might stop."  This is truly audacious and important.  It may even be enough to get him expelled from some gatherings of contemporary conservatives, while demonstrating, as a matter of fact, that "conservative" thought may in fact be more capacious than is sometimes realized.

 I would also suggest that he is being faithful to what is most inspiring about those we call the Founders, which was their willingness to look clearly at the challenges facing them/us and to suggest what appeared to be remarkably radical solutions (including what was correctly described as a "consolidated government" to replace the "imbecilic" system of the Articles of  Confederation.  As I argued in my own book, An Argument Open to All:  Reading the Federalist in the 21st Century, the arguments about an "extended republic" do not have a logical stopping point in the boundaries of the United States either in 1790 or 2019.  We must at one and the same time incorporate the desirability of "subsidiarity," i.e., the willingness to place power at the most local level plausible in terms of effectively responding to the problems at hand, and, at the same time, the willingness to establish brand new institutions, if need be, to respond to problems where local governments  (including nation-states) will simply be inadequate.

It would be unfair to expect Calabresi to have worked out all of the tensions in his argument.  But I do hope that his openness to new possibilities and the implicit challenges to some of the shibboleths of both the contemporary left and right portends further elaboration of his arguments.  It would be a pleasure to extend this own epistolary exchange accordingly.


(1) The Founders express intent was to design a republic, not a democracy. The purpose was to limit the power of the national government to abridge our liberties. The resulting design divided the elected national government into three parts balanced between localities (House), the states (Senate) and a combination of the two (POTUS), each of which could check the others.

As Steven correctly observed, these "veto points" generally require an effective supermajority "consensus" to exercise national power, in stark contrast to the effective plurality rule we often see in more "democratic" parliamentary systems. One way of looking at this is, If democracy is majority rule, then the supermajority rule required under our constitutional system arguably provides a super democracy.

Sandy's real complaint is the Constitution's "veto points" generally work as designed and prevent transient progressive elected majorities and pluralities from enacting all of their preferred policies.

(2) The "weak global federal democracy of the G-20 constitutional democracies" both Steven and Sandy propose is the same kind of confederacy established by the "imbecilic system of the Articles of Confederation," the CSA and the EU. Confederacies are fatally flawed systems made worse in this case by joining together with nations which have even less respect for freedom than does our political establishment.

I saw an op-ed recently that referenced a proposal to not only have senators for D.C. but for territories (Puerto Rico and all the rest) and ... this is a novel thought .. Native American tribes. There are various numbers to use when counting Native Americans but even the smaller ones would match various states. OTOH, we are talking about a large number of tribes though a few in particular have sizable populations.

Laurence Tribe offered the idea of at large senators. This would be an interesting way to get around the hard to avoid requirement of an equal number of senators for each state. A simple amendment, without universal agreement, can allow that sort of thing. Of course, the Articles of Confederation was very hard to amend and it was deemed (after less than a decade) appropriate to replace it with an easier mechanism of amendment. We can also amend out the equal suffrage requirement and start over.

The Madison approach of apportionment by population in the Senate, which is deemed workable in individual states, might one day be deemed appropriate nation-wide. I think some sort of compromise might be okay there with strict equality perhaps not necessary. But, the current population contrasts are off.

Joe, equal representation of states in the Senate is the one thing that Article V demands unanimous consent of the states for. No state may be deprived of it without it's own consent, even if every other state is in favor.

It would actually be easier to abolish the Senate, that would only require the normal super-majority.

Brett reminding me of something I already referenced is appreciated.

The Articles of Confederation had this provisions:

"nor shall any alteration at any time hereafter be made in any of them [articles]; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state."

In less than a decade, a government was in operation under a new Constitution, before every state agreed to it. But, that isn't necessary here.

There is the at large option. Each state would still have equal suffrage but there would be at large senators. I guess one can argue this is against the spirit but seems to be allowed to the text.

Another option is to amend the Constitution and remove that provision. A unanimous consent isn't required by the text to merely remove it. Once no longer there, a new amendment can be passed. A similar two-step approach was used in the United Kingdom to weaken the power of the House of Lords (a rule was in place protecting it but it was removed and then the House of Commons had more power).

I'm not actually sure if there is less chance of either happening than simply keeping the current Constitution and abolishing the Senate. Another approach would be to basically water down the powers of the Senate.

Maybe he's correct about the 6/6 division, but he counted Vermont twice.

In any case, it's pretty easy to figure out the effect of smaller states' equal representation on the Senate's composition; you compare the popular vote in all Senate races to the Senate's composition. I did the math a couple weeks ago and as I recall, Democrats received 55% of the votes in the races, from 2014 to 2018, that determine the Senate's current composition. Yet they have much less than 55% of the seats.

Of course, you have to remember that only a third of the Senate is up for reelection in any given election year, so it really isn't suited for such calculations.

If you calculate the number of people represented by each Senator, counting 50% of a state's population for each, you get a 52-48 breakdown in favor of the Democrats.

That's more meaningful than Calabresi's silly 6-6 point.

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