Balkinization: What Am I Doing Here? Reflections of a Relative Newcomer to the Field of Comparative Constitutionalism

What Am I Doing Here? Reflections of a Relative Newcomer to the Field of Comparative Constitutionalism

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Comparative Constitutional Design, convened as part of LevinsonFest 2022.

First, as always, I want to convey my deepest thanks to the organizers of this splendid (at least from my perspective) project, Richard Albert and Ashley Moran—and to the indispensable Trish Do, who actually makes the Zoom project work without any foul ups. And, of course, I’m also very grateful to Jack Balkin for giving us this space on Balkinization. As wonderful as I’ve found the conversations, they are inevitably truncated, and it is even more wonderful to have the presentations available in this venue. And, of course, I’m immensely grateful to the participants. Some older readers might recognize in my title a reference to Admiral James Stockdale, Ross Perot’s running mate in the 1992 presidential election. As he began his own remarks in the debate among vice-presidential candidates, he asked why he was there at all, given the lack of fit between his distinguished military career and the demands of running for public office. So do I feel a certain sense of wonderment, for the contributors to this panel (and now symposium) are truly among the leaders of the ever-more-important field called comparative constitutional law. They have allowed me entry over the past decade or so, but that should not be confused with genuinely full membership into the rank that they collectively occupy. They have in effect been my teachers and I, their student, and I anticipate that that will continue to be the case in the future. This is not false modesty, but only honest recognition of the reality that most of my career was spent fixated on one constitution, that of the United States, and my move toward a more comparative focus came relatively late.

Let me begin with the first sentence of Kevin Cope’s and Mila Versteeg’s piece on American public opinion with regard to imposing term limits on Supreme Court justices. They correctly identify me as “a long time critic of the U.S. Constitution and the Supreme Court as described therein.” That is surely correct. Indeed, the extent and vociferousness of my critique has only grown in recent years. As noted in my response to the papers for the session titled “Can the U.S. Constitution be Saved,” I am now inclined to view the Constitution as a “clear and present danger” to our survival as a country—and, therefore, as a danger to the entire world given the importance of the United States on the world scene. Why is this relevant? There are at least two reasons.

The first is that one invariably becomes interested in how other systems address problems that I believe the U.S. Constitution does in an unsatisfactory way. So, with regard to the topic of the Cope-Versteeg essay, one obvious question is simply whether part of “American exceptionalism” is what I often call “full-life” tenure for members of its apex courts (as, well, of course, as all so-called “Article III” federal courts). The answer is most certainly yes. The United States may not be literally unique, but anyone attracted to “large-n” comparisons of constitutions will quickly realize how much of a true outlier the U.S. is. But one can ascertain that without having to look at other national constitutions. I have strongly urged that “comparative constitutionalists” pay more attention to the “other” fifty constitutions in the United States, i.e., the state constitutions that are, in fact, both important and interesting in their own right. One will quickly discover that only one of the fifty states, Rhode Island, has a similar system whereby their judges can literally serve for life if they wish to. All of the others have either term limits or age limits. The spectacle of, say, Justice John Paul Stevens (whom I much admired) serving for 34 years until he retired at the age of 90, is unknown not only abroad, but even more to the point, everywhere else in the United States (save, perhaps, Rhode Island). Most American judges, since they serve at the state level, are, as in my home state of Texas, elected, which horrifies many and serves, for others, only to make the politicized nature of appointment to the courts absolutely transparent. Many other examples of the differences between the 1787 U.S. Constitution, even as infrequently amended, and the constitutions of the fifty states, could be given, but the principal point should be obvious. For those who don’t have the resources or the language skills to go to Madrid, Minsk, Malabo, or Mogadishu, there are always Madison, Montpelier, or Montgomery! That is, of course, surely not the major lesson to be drawn from Cope’s and Versteeg’s paper, which is the relative indifference of much of the public to the actual process by which certain changes might be made in the Constitution regarding life tenure.

A second crucial question, though, is whether “constitutional design,” which I increasingly describe as a major interest, especially with regard to what I call the “hard-wired” structures (in contrast to rights provisions) of constitutions, really makes an ascertainable difference. I have frequently noted that when I went to graduate school some 60 (!) years ago, a major conflict within the discipline of political science involved those who focused on formal institutions and the rising number of scholars interested in what Gabriel Almond and Sidney Verba, in their classic book, called The Civic Culture. The more one emphasized cultural factors, the less one might think that formal institutions really mattered. A “good” civic culture could operate (or survive) practically any constitutional design; a “bad” one would prove that any design could easily become “dysfunctional.” Kant may have believed that a system could be designed that would force even devils, as “rational actors,” to serve the public good, but few people agree. As Milton suggested, devils ultimately inhabit “chaos” and “pandemonium.” So, returning to the paragraph above, would eliminating life tenure—or even “packing the Court” with politically compatible judges—necessarily overcome the deep problems facing the United States today? After all, one cannot look at (many) other countries and observe the unproblematic functioning of their key institutions. Or, to the extent they are functioning well, as in Norway, say, that may be a function of its small population and its relative homogeneity. Perhaps Montesquieu was right after all, that a republican government—or what today we might call “liberal democracy”—is possible only within a small and homogeneous society. That would be truly discouraging if true.

So Yasmin Dawood addresses directly the question that most interests me these days: “To what extent do the hard-wired aspects of a constitution contribute to the functioning of democracy?” To be sure, we have to agree, at least roughly, on what we mean by “democracy,” but the question is basically an empirical one. What does the evidence show? As she notes, “authoritarian rulers” are often able to “subvert” ostensibly “constitutional processes and institutions,” but does this simply confirm, as Rosalind Dixon and David Landau have suggested, that illiberally disposed rulers, like Viktor Orbán, can “borrow” the design features of liberal constitutions and turn them to their own nefarious ends? Ultimately, Yasmin, after asking a host of good questions, concludes that “the degree to which the hard-wired constitution matters in any given jurisdiction at any given time,” especially if we are interested, as she is, in “effective and/or democratic government”—and it is telling that she at least hints that democracy and effectiveness are not necessarily congruent—is “highly contingent and contextual.” I agree entirely with her, but that, of course, is not a really happy conclusion. I have throughout my career been far more successful in raising questions than in providing answers. No student seeking “closure” should ever take any of my courses. But I can also understand why that is frustrating. We cannot live our lives only asking questions. Decisions have to be made, even if not by academics, and it would be reassuring indeed if those interested in “constitutional design” could offer confident advice as to the relationship between value ends and institutional means. I sometimes joke with my students that they should imagine themselves enrolled in a course where, at the end of it, they will receive a document establishing themselves as “certified constitutional designers.” But is that a truly feasible aspiration, inasmuch as it suggests that confident answers would outnumber sometimes anguished doubts and questions?

So my friend, colleague, and teacher Gary Jacobsohn raises another key question. If, in fact, Yasmin is correct, as she surely is, that knowledge of context, and inevitable contingency, is crucial if one is actually going to offer advice, then do I, in particular, know enough about other systems, outside the United States, to offer such advice? This is not a snarky question on his part, because he is evoking what I call my “Latvian lawyer” essay, generated by a discussion I had while teaching a group of Eastern European lawyers shortly after the collapse of the Soviet Union about the merits of confining the legal profession only to members of the country in question. I readily admitted that “I know almost nothing about the actual system of Latvian law,” and it went without saying that I had no facility in either Latvian or Russian, the languages spoken in that country (though an ancillary controversy was the legitimacy of trying to turn Latvia into a monolingual country rather than embracing the multilingualism inherent in a recognition of Russian as a continuing “official” language).

Gary mentions Clifford Geertz, which is especially appropriate inasmuch as I learned from Geertz as well during my membership in 1986-87 as a Fellow at the Institute for Advanced Studies in Princeton. I had previously taught his essay on “thick description,” which certainly underscores the fatuity of believing that one can helicopter into a society and infer anything truly important about it in a short sojourn. Some “comparativists”—and here perhaps Kim Scheppele is the best single example—have truly put down roots and immersed themselves in a very different society and culture, in her case Hungary. She learned one of the world’s most difficult languages in order to do that. But that, to put it mildly, does not describe me. Indeed, Gary encourages one to ask whether even Tocqueville’s famous trip through America was sufficient to support that often gross generalizations that he offered about “democracy in America.” But perhaps we simply have to recognize that Tocqueville was a genius. And it is a fool’s errand to try to model oneself after a genius.

Gary has written incisive, brilliant, books about Israel and India. I have alluded to both countries on occasion, as well as a host of others I’ve visited for a week or two, but no one should believe they represent a Jacobsohn-like immersion, let alone the Geertzian-anthropologist’s field work. Perhaps this explains why over the years, my “comparative design course” that I’ve taught with Victor Ferreres, from Barcelona, has become ever less confident in any of its major assertions, save for the complexity of the enterprise, at the cost, no doubt, of frustrating many students.

A major interest of mine is identified by Ros Dixon, another person aptly described as one of my teachers. That is constitutional amendment. One might well wonder exactly how we identify the existence of an “amendment” (other than relying on the unhelpful formal criterion of a textual addition to a foundational document). But she discusses the more practical question of how easy or difficult formal amendment should be. Both of us agree that the United States Constitution is far too difficult to amend; as a result, it has become something of an “iron cage,” in contrast to many other constitutions, both abroad and at home in the United States, that are easier to amend. But is that enough to endorse easy amendment. Her answer is no, that undue flexibility invites what she and Landau have called “abusive” constitutional amendment. Perhaps better the devil we know than the devil we might get through a too easy process. She (and Landau) have offered the possibility of “tiered” constitutions, whereby a given constitution, like Germany’s, might have an “eternity clause” regarding its most important provisions, while allowing all other parts of the constitution to be vulnerable to what Hamilton in Federalist 1 called “the reflection and choice” of the public as to whether or not to maintain them. This leads directly to the conundrum, about which Gary’s co-author Yaniv Roznai has especially written, of “unconstitutional constitutional amendments” and whether we wish to assign judges the authority to make such determinations, especially if the “eternity clauses ” are less than transparent in their meaning. Borrowing from Aziz Huq, she also suggests the possibility of “sequencing,” whereby we “freeze” a new constitution for X number of years before opening it to potential change. Both are certainly worth thinking about, and I will surely submit them to students the next time Victor and I teach our design course in the spring of 2023. But, as always, the question remains about the degree of confidence that one might have in any given proffered solution, even assuming we agree on what is the problem in the first place.

Ashley is not only a key organizer of this event; she is also a gifted political scientist in her own right, having written a fascinating dissertation on Iraq. Here she examines what is in effect yet another hobbyhorse of mine, i.e., what I regard as an “illegitimate” Senate because of the degree of its malapportionment relative to any plausible notion of one-person/one-vote in the 21^st century. I describe it as an “affirmative action” program for the residents of small states, most of whom are considerably older, whiter, more religious, and less urban (or urbane) than are the residents of the states in which most Americans actually live. Today, over 50% of the American populace live in only nine states, with a total of eighteen senators. You can do the math about the remainder. But Ashley has done the math herself, and she proves conclusively that by any measure the United States has one of the most malapportioned “upper houses” in the world. If one is a political theorist interested only in formal measure of equality, then the Senate dooms the United States to description as one of the most truly unequal polities in the world today. Once more, though, one wants to know how much it “really” matters to anyone interested in actual political outcomes rather than only what might be called the “aesthetics” of design or even the degree of “fairness” that might be thought to be linked to a concern for “equality.” Is the “better-apportioned” Czech Republic graced by a more responsive, “better” government than the United States? And, whatever one’s answer, how much is that related to the apportionment, as against many other factors that we would obviously want to know about.

Needless to say, I, like everyone else at UT, was elated when Ran Hirschl joined our ranks. He has been one of my most important teachers, especially since, suffering from jet lag, I got up in the middle of a Jerusalem night to read his manuscript Comparative Matters. And his contribution here continues his teaching. Toward the conclusion of his paper, he addresses the topic raised by Ashley, i.e., apportionment and malapportionment. In light of his general thesis, he suggests that countries outside the usual list, especially in the Southern part of the world, are confronting various dilemmas of representation more directly and imaginatively than the older, more presumably developed, countries of the North. He is particularly, and rightly, interested in the rise of megacities and the degree to which they should lead us to question our traditional reliance on a Westphalian model of the state in which cities are merely subordinate units of the “sovereign” state. He is surely correct, but I despair, especially here in the United States, that his analysis (and de facto advice) will be taken.

I can only relate a disappointing anecdote, a single data point, as it were: In 2020 and 2021 I was the de facto chair of a group summoned into being by Michael Tomasky, the editor of Democracy (and now, in addition, The New Republic) and charged with the task of designing a new U.S. constitution fit for the 21^st century. It was an exhilarating and chastening experience, where a core group of 25-30 persons, most of them academics, debated many fundamental issues surrounding “constitutional design.” Sparked by Ran’s book on the rise and importance of megacities, I proposed that the largest American urban areas, with a metropolitan population of more than, say, four million people (New York, Los Angeles, Chicago, and Houston) receive what might be termed “designated senators” of their own. There is no good reason that these cities should be at the mercy of often-antagonistic rural or exurban areas, even if the latter comprise, as in Texas, an overall majority of the state. And it would be a healthy development if there were senators who could be counted on to focus on explicitly urban problems. But the long and the short of it is that I could not persuade even the other participants, all of whom were “liberal” or “progressive” in their politics. I cannot exactly explain why, but I find it telling , as well as disappointing, nonetheless.

Ran also emphasizes the degree to which a number of Southern countries are considerably more attuned to environmental concerns than their Northern counterparts, as reflected in clauses in a variety of recent constitutions. I offer only two short observations. James Madison notably suggested that most “rights provisions” would prove mere “parchment barriers,” as against structural provisions that have greater sticking power. (This is one of the reasons that my own interests focus on structural rather than rights provisions.) Ran cites several cases from around the world suggesting, though, that the provisions might turn out to have some real bite, which is surely interesting. But, ironically or not, his argument seems to be in at least some tension with the powerful argument of his first book, Juristocracy, which was widely read as a critique of the power placed in courts, usually by fading elites fearful of their prospects in the rough-and-tumble of politics. Has he in fact modified his views, at least somewhat, on this score? One of the most notable features of a number of younger “progressives,” including those who participated in what I call the “Tomasky project,” is the far-diminished faith in the judiciary. There is, I suspect, far more receptivity to the picture of courts as a “hollow hope,” at least for progressive causes, than was the case, most certainly, in the heyday of the Warren-Brennan courts. But it appears that such hostility to courts may not be universally shared, and I’d certainly like to know more about this.

So I conclude with another greatly esteemed colleague from whom I have consistently learned (and taught), Zach Elkins. He focuses on what is, for better or worse, a scholarly interest of mine, guns and the Second Amendment and, even more particularly, the various arguments that are offered for allowing widespread private ownership of firearms. The one I have always found most interesting, intellectually, is the “civic-republican” notion that an attentive (and armed) public can be useful to “rise up,” (as Lin-Manuel Miranda’s Hamilton might put it) against tyranny, whether domestic or foreign. Zach counterposes developments in Uvalde, Texas and Ukraine in terms of testing our intuitions about guns, an especially telling form of comparative analysis. But Zach’s paper is extremely interesting—and depressing—in quite another way. He draws on work he is doing with Jill Lepore (in a project on which I serve, at least formally, as a member of the advisory committee) on public attitudes toward amending the United States Constitution. In a sense, his paper bookends the initial paper I discussed by Cope and Versteeg, also a study of American public opinion.

Zach is most interested in the degree of support for retaining “the right to keep and bear arms” (47%), behind birthright citizenship (52%) but well ahead of bicameralism (36%). Interestingly enough, the lowest degree of support (21%) is accorded retaining life tenure for justices. But consider “equal representation of the states in the Senate,” which I obviously think is indefensible in the 21^st century and was, as James Madison said in 1787, even then an “evil,” even if it was a “lesser evil” to the collapse of the constitutional project itself because of the likelihood that the small states would simply have walked out. But an “evil” remains “evil,” even if there are good prudential reasons for feeling a necessity to compromise and accept it. If it is true that fundamental reform of a dysfunctional Constitution in the United States would require eliminating the equal suffrage among the states, then there is good reason to think that the task is hopeless. It obviously raises the most exquisite constitutional problems, given the text of Article V and its seeming requirement of unanimous consent, which, as a practical matter is unthinkable. But one would never get to the stage of thinking about formal amendment—or of doing end runs around the iron cage of Article V—unless there was significant public support, and that is lacking. Eliminating life tenure for justices appears almost a breeze compared with the far more serious issue of the Senate.

So, to return to the beginning, it is clear that what I am doing here is learning from a variety of scholars who help to constitute the contemporary field of comparative constitutional law. My role is to consume rather than to create. (I’m a “taker” rather than a “maker” of scholarship in the area.) But I hope that the degree of my own benefit is clear and, more important, why it is desirable that other people follow my own path from a fixation only on the United States Constitution to consideration of the rich array of comparative materials that is so readily available if only we will look around and, in some cases, simply talk with our colleagues.

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. He is also a Professor in UT’s Department of Government and a Visiting Professor of Law at Harvard Law School. You can contact him at slevinson@law.utexas.edu.

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