Archive for December, 2006

The Constitution’s Political Deficit

Posted 1995 days ago by HLPRonline editorial staff

Robin West*

Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate1 and the Electoral College.2 Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point.

Thus, I think Levinson’s claim is essentially right, and I would like to make two friendly amendments to his proposal. There is, indeed, a worrisome democratic deficit in our own constitutional scheme. I suggest, however, that there are two additional problems with our constitutional practices, besides those Levinson has flagged for revision, that also impact detrimentally our democratic commitments. Echoing Levinson’s framework, I would call the first of these two additional problems a “political deficit,” and the second a “legal deficit.” Our current dilemma exists not only because our written Constitution clearly tilts against representative democracy in the way Levinson decries. Our constitutional practices also tilt against politics, democratic or otherwise, and the ordinary law – legislation – that is its product. These political and legal deficits also deserve our critical attention.

I. The “Political Deficit”

Current constitutional practices (not the text itself) tilt against politics by virtue of a phenomenon I have elsewhere called the “legal question doctrine.”3 By the “legal question doctrine,” I mean a threefold conflation of moral and political questions about the nature of good governance into constitutional questions, constitutional questions into legal questions, and ultimately, legal questions into adjudicative questions for courts. Moral and political questions about the nature of good governance thus become questions for courts, rather than questions for legislators or concerned citizens.

To elaborate very briefly, the logic of that conflation is as follows: under our current liberal constitutional arrangements, constitutional scholars, lawyers and justices quite routinely, even habitually, regard the most pressing moral and political problems facing our polity as “constitutional” questions. Thus, whether and when a state ought to criminalize abortion or hate speech, or control the flow of guns on the street, or integrate schools, or allow gay couples to marry, or allow the executive to suspend the writ of habeas corpus; or whether the state, with our tax dollars, ought to provide for health care, child care, housing, or food for needy citizens who cannot amass the dollars to purchase them in unregulated markets; or, for that matter, whether citizens in more populous states ought to enjoy equal representation in the United States Senate – all of these, and hundreds of questions like them, are clearly moral questions about good governance. But, precisely by virtue of the fact that they are moral questions about how we ought to govern ourselves, they are therefore regarded by our community of constitutional scholars, lawyers, and judges as constitutional questions. Whether a state should criminalize abortion, then, is eclipsed by a different question: whether it would be constitutional for a state to do so. Likewise, discussion about whether we should criminalize hate speech or whether we should re-write our marriage laws to allow marriage by gay couples become matters of whether the constitution so mandates, rather than what a morally decent state ought to do. Whether we should control the flow of guns on our streets becomes a question of whether the state may constitutionally do so, and whether the state should provide welfare rights becomes a matter of whether or not the constitution so requires, or, secondarily, permits. And so forth.

Second: these constitutional questions, precisely because they are constitutional, become, by virtue of the “legal” status of the United States Constitution, questions of “law.”4 A “constitutional question” is a “legal” question – not a political or moral question about governance. So, questions regarding whether or not a state might constitutionally criminalize abortion, hate speech, and so forth, or whether a state might be constitutionally required to provide for welfare or gun control, become, by virtue of this second transformation, questions about the content and meaning of our law. Third and finally, given the legacy of legal realism, these legal questions in turn become questions about what courts will and will not do: what they understand the law to be and how they will likely decide the question, should it be presented them. Thus, by this three-fold conflation, questions that on first framing were moral or political questions about good governance – Should states criminalize this, that or the other? Do states have obligations to the needy? Should executives have a certain sort of power? – become purely legal questions about court decisions. Political questions become, through constitutionalism, questions about judicial behavior.

I have argued elsewhere that this is very bad for the content of our constitutional law,5 but what I want to urge here is that the “legal question doctrine” thus understood also occasions a serious “political deficit.” Real moral inquiry into the nature of good governance happens in courts of law, rather than in political fora. Politics, as Aristotle envisioned, should consist of ethical reasoning among equal human beings about how to govern themselves. Understood as such, politics, practiced well, is the highest, most ennobling, most serious form of practical human reasoning that exists. But over the course of the last century, in an almost uninterrupted trajectory, we have delegated this serious, moral, ennobling work of political activity among and between political equals to the courts. And what has been the consequence? We have a library full of a hundred years of judicial reasoning, argument, and deliberation – some ennobling, some of it awfully pompous, and some just embarrassing – on the meaning of liberty, equality, democracy, and so forth. Meanwhile, Congress, a political branch, withers not so much from corruption, as from disuse. The Court reasons, ideally and occasionally, in an Aristotelian spirit: with its eye on liberty and equality, among equals, at least on the Court. The Congress, by contrast, merely acts – motivated by whimsy or by passion, for good reasons, bad reasons, or no reasons. This allocation of labor — the Court engages in ennobling moral reasoning about good government and therefore in the philosophical and moral arts of politics, while the Congress does nothing but act, on the basis of its own or constituent “preferences” – occasions what I am calling the “political deficit.” The “legal question doctrine” transforms political questions about the nature of good governance into legal questions. The work remaining for the political branch? Horse trading at best. True politics has been given over to courts.

II. The “Legal Deficit”

Although this might initially seem paradoxical, the combination of what Levinson calls the “democratic deficit” and what I am calling the “political deficit” inherent in U.S. constitutional law and practice lends aid, from time to time in our history, to profoundly lawless, asocial and destructive impulses. By so denigrating the law-maker, we denigrate her product, which is ordinary law. Thus, the “legal deficit.” Of course, our constitutional text and practice have, on a handful of important occasions, given “constitutional” comfort to a highly principled natural law. In such cases, text and practice have been a friend and ally to moral and righteous civil disobedience against unjust majoritarian inclinations, as expressed in morally noxious and politically destructive legislative action.6 Less remarked upon, however, is that our constitutional practice has also given constitutional comfort to the anti-legalist instincts of a very different and what might be called “hyper-individualist” strand of anti-legalism: a frontier-conquering, gun-wielding, tax-protesting, border-protecting, conception of liberty, which seeks, with constitutional help, to free the individual of all obligations to the social compact, neighbors, states, and even families, much less to the very “beloved community” of which Dr. King so eloquently spoke.7 Likewise, these days our anti-legalistic and anti-legislative constitutional practices give aid to the President, who seeks constitutional blessing for his instinct to be freed from ties not only under the domestic law that seeks to constrain his reach, but under international laws, treaties, conventions, and covenants that might do so as well.8 The constitutional and, hence, anti-legalist obligations and entitlements of such a commander-in-chief might well “trump” in his own mind and in his office the petty duties of fidelity to ordinary law.

We ought to view both phenomena as dangerous. Hyper-individualism can morph into a narcissistic and costly recklessness, just as a militarist executive unleashed from legal bonds, as well as other sorts of bonds that strengthen and recognize our shared humanity, might imperil the planet. A constitutional practice that preaches relentless suspicion of ordinary, voted-upon law, that persistently sees in politics the worst in us, and sees in a document that protects us against our ordinary politics the best of us, winds up casting a pall of potential illegitimacy over the legislative product. Constitutionalism preaches distrust of both majoritarian politics and of its product, ordinary law. This effect of Constitutionalism is what I’m referring to as the “legal deficit.”

The political and legal deficits are at the heart, not the periphery, of our Constitutional practices. Together they create a tension with our democratic commitments that goes beyond the Constitution’s mandated composition of the Senate and the machinations of the Electoral College. In fact, the political and legal deficits that are at the core of our constitutional practices might be best understood as the deep currents that legitimate the more explicit democratic deficit in the constitutional text that Levinson rightly decries. But whether or not that is right, the twin deficits I have described do other harm as well. Those deficits compromise our political, and hence our communitarian, lives. They make it difficult for us to regard our ordinary politics as ennobling. As an historical project, they make almost impossible what would be difficult in any event, namely, the attempt to democratize Aristotle’s elite vision of the art of politics as ethical governance among civic equals. They make us distrust and disavow our political selves, all in the name of a higher law, and they make us disown the legal product – the ordinary law – that is and should be the prized result of our political conversations. True political engagement and struggle, and the law that might come from it, is one of the greatest achievements of communal life among civic equals. The political and legal deficits at the heart of constitutionalism compromise not only our democratic commitments, but our communal life.

What to do about all of this? A Constitutional Convention of the sort Sanford Levinson envisions may well address this. I would urge us to consider, if we are imagining reconstructed consitutitons, both a constitutional text and a set of constitutional practices, that are far more respectful of politics and law than those we have inherited. But such a convention, whether or not it is ever feasible (and whether it would yield such a product), is surely a long way off. In the meantime, there may be other ways of skinning this particular constitutional cat.

First, and as a growing number of popular constitutionalists are now arguing, our Constitution has, in the past, been changed by all sorts of political, social, and even individual means, not just amendment, judicial interpretation, or full-blown conventions.9 The Constitution does not, need it still be said, speak with one voice. We are a multitude, and the Constitution has many authors. There is, I believe, a largely unacknowledged and dangerously anti-communalist, anti-legalist, and anti-political river of meaning that runs through it, which I have tried to articulate above. But there are other streams and byways of meaning. Non-judicial and decidedly non-dominant voices in our constitutional history have at times pointed us in the direction of constitutional meanings that have urged a broader, more inclusive, and more egalitarian politics, not an untrustworthy one that is at best constrained by wiser courts.

Second, a number of discarded and disused clauses in the actual text – the Privileges or Immunities Clause10 and the Citizenship Clause11 are the clearest examples – seemingly direct us toward engaged Aristotelian politics, not away from it. These clauses impose political duties on sovereigns and fiduciary responsibilities on all of us to protect and respect our co-citizens, rather than just enumerating rights for each of us as individuals.12 We might already possess a relatively forgotten constitution of political action, of civic obligation, and of state responsibility which exists alongside the constitution of individual rights, minimal governance, and divided powers to which the courts and commentators have given so much voice over so much of the last century. We could study our political constitution; we could magnify its message; we could interpret its clauses. More to the point, though, we could act on it.

How? At a minimum, progressive law professors, lawyers, judges, students, and scholars might seek to inform, enhance, and imbue our politics, rather than our law, with the progressive and egalitarian constitutional visions of equality, liberty, and citizenship that we have so meticulously articulated within the judicial branch. We could demand of our political representatives at all levels that they possess wisdom, demonstrate reason, and keep their collective eye on the prize of liberty, equality, and citizenship. We have, to date, expected these traits almost exclusively of our judges. I would like to see law professors and students start a conversation not only about having a constitutional convention, but also about the much more immediate objective of staffing congressional offices, no less than judicial chambers, with the best and most idealistic of our law schools’ graduates. Whether or not that comes to pass, we might at least think about what the Constitution we have actually says to our representatives about the nature of the power we give them, and what they should do with it, rather than focus so exclusively on what our current or idealized Constitution might say, through the oracular view of judges, regarding what they must not do.

Were we to do so, we might conclude that a little more of the stuff of utterly ordinary, politically generated, lets-put-it-to-a-vote law, and a little less of the very high-minded constitutionalism that constricts it, might be both fully in line with unexplored constitutional aspirations and visions and, more importantly, a very good thing in itself. Ordinary but decent political struggle – organizing, politicking, debating, compromising, voting, legislating, and then respecting the product – might hold the key to taming our current, anti-communitarian, destructive approach. Perhaps we need a convention of the sort Levinson suggests, if we are ever to have a Constitution committed to the creation of both a more ennobling as well as more representative politics. If so, I believe we should join Sandy Levinson in his call to at least begin a conversation about the need to have a convention. A Constitution that would underscore, rather than undercut, the nobility and centrality of politics and law to democracy would be a more worthy one.

* Robin West is Professor of Law, Georgetown University Law Center.

1 Sanford Levinson, The Democratic Deficit in America, HARV. L. & POL’Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/levinson_01.html.

2 Id.

3 Robin West, Katrina, The Constitution, and the Legal Question Doctrine, 81 CHI.-KENT L. REV. 1127 (2006); Robin West, Unenumerated Duties, U. PA. J. CONST. L. (forthcoming 2006).

4 U.S. CONST. art. VI, cl. 2 (the Supremacy Clause).

5 See, e.g., Robin West, Katrina, the Constitution and the Legal Question Doctrine, supra note 3.

6 For a classic description of this phenomenon, see Ronald Dworkin, On Civil Disobedience, in TAKING RIGHTS SERIOUSLY (Ronald Dworkin ed., 2005).

7 M. L. KING, WHERE DO WE GO FROM HERE? CHAOS OR COMMUNITY? (1967). See generally, KENNETH L. SMITH & IRA G. ZEPP, SEARCH FOR THE BELOVED COMMUNITY: THE THINKING OF MARTIN LUTHER KING, JR. (1974).

8 See, e.g., Deborah N. Pearlstein, Saying What the Law Is, 1 HARV. L. & POL’Y REV. (Online) (Nov 6, 2006),

http://www.hlpronline.com/2006/07/pearlstein_01.htm. Of course, the President does seek such constitutional blessing from his own circle of advisors.

9 See, e.g., LARRY KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999); Larry Kramer, The Supreme Court, 2000 Term-Foreword: We the Court, 115 HARV. L. REV. 4 (2001); Reva B. Siegel, Constitutional Culture, Social Movement, Conflict and Constitutional Change: The Case of the de facto ERA, 95 CAL L. REV. (forthcoming 2006).

10 U.S. CONST. amend. XIV, § 1.

11 Id.

12 Goodwin Liu, Education, Equality and National Citizenship, 116 YALE L.J. 100, 104-05 (2006).

Preferred Citation: Robin West, The Constitution’s Political Deficit, 1 HARV. L. & POL’Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/07/west_01.html.

Second-Best Democracy

Posted 1995 days ago by HLPRonline editorial staff

by Adrian Vermeule*

Sandy Levinson argues that our Constitution is undemocratic, and that this is a bad thing.1 In his essay for this symposium and in his new book,2 Levinson’s principal targets are the hopeless malapportionment of the Senate, the strong status quo bias produced by our quadricameral lawmaking structure (House, Senate, presidential veto, and judicial review), the episodically harmful influence of the electoral college, life tenure for Supreme Court justices, the excessive aggrandizement of presidential power, and, related to the last, the Constitution’s failure to set up any real regulation of emergency powers or provision for government continuity in case of a catastrophic attack. The solution is a citizen-initiated convention that will give us a new Constitution, informed by our democratic commitments and by the last two centuries of experience with constitution-making around the world.

Levinson’s iconoclasm and his bent for present-oriented or forward-looking law, as opposed to ancestor-worshipping law, are refreshing. However, his indictment of the Constitution may not succeed even if his theoretical premises are right. Levinson offers a piecemeal critique, walking through the Constitution’s central features and condemning them one by one. This procedure overlooks that our constitutional order may be more democratic than the sum of its parts. Interactions among institutions that are undemocratic, taken one by one, can produce a kind of emergent democracy at the aggregate level. This possibility arises because second-best effects cause our Constitution’s democratic failures to offset each other, at least in part.

Put conversely, adopting all of Levinson’s proposals would produce a first-best democracy, by Levinson’s lights. But if political constraints rule out even some of his many proposals, then it need not be best, even on Levinson’s criteria, if the remainder are adopted. Where political constraints rule out full attainment of the first-best regime, the general theory of second best entails that there is no general reason to prefer moving as close as possible to the first-best.3 Indeed, further departures from the first-best will sometimes be necessary to compensate for the initial departures. Unless all of Levinson’s proposals succeed, Jeffersonian democrats like Levinson might have good reason to prefer our current, democratically-flawed constitutional order to a regime that tried to approach the first best as closely as possible. For Jeffersonians, although our current constitutional democracy is imperfect, it may well be a tolerable second-best. At least that is the next conversation Jeffersonians need to have, even if they are convinced by everything Levinson says.

I. Offsetting Failures of Democracy?

Levinson argues that each of our national institutions is undemocratic, taken one by one, because those institutions fail to implement the preferences of current national majorities. Even if this is right, not much follows, not necessarily anyway. It is wrong to suppose either that (1) if the constitutional order is democratic, each or even some of its component institutions must themselves be democratic; or that (2) if some or all of the component institutions are undemocratic, the product of their interaction cannot be democratic. These are fallacies of aggregation: respectively the fallacy of division in case (1), of composition in case (2).4 An array of institutions might produce a system that is more democratic than any member of the array.

Two mechanisms might produce emergent democracy at the aggregate level, even if the underlying institutions are democratically objectionable. One possibility involves second-best offsets or compensating adjustments: an institution that departs from the democratic ideal (whatever it may be) in one respect might serve to cancel out the undemocratic effects of another institution in the array. Another possibility is that by distributing undemocratic power widely, to a range of different groups, the Constitution might produce political interactions that are tolerably democratic overall. These possibilities are speculative, but they spotlight some tensions within Levinson’s thesis.

To begin with, some of the undemocratic arrangements that Levinson condemns are themselves the cures for other arrangements that he also condemns. Levinson, for example, does not like the status quo bias of our national lawmaking system.5 The main cure for this, which culminated during the New Deal, is lawmaking by the executive branch through administrative agencies that combine legislative, executive, and judicial powers-the very fusion that the unwieldy quadricameral system was designed to prevent. The benefit of executive-branch lawmaking is that within the bounds of broad and vague statutory delegations, it bypasses the vetogates and can thus be adjusted to changing circumstances as new administrations, with new views, succeed each other over time.6 The cost is inflated executive power; critics of executive lawmaking routinely invoke the so-called “nondelegation doctrine” to argue that the administrative state dilutes “democratic accountability,” here equating democracy with congressional policymaking.7

Levinson dislikes the New Deal’s pumped-up executive, but that is just the byproduct of the New Deal’s attempt to cure the status quo bias he also dislikes. Of course the first-best, from Levinson’s perspective, would be to restrict executive power and also to abolish bicameralism or in some other way reduce status quo bias. But a regime with both status quo bias and a strong executive is better, not worse, than a regime with only one of those two features, according to Levinson’s own criteria. The piecemeal critique misses this interaction effect and thus ranks the possible regimes incorrectly.

Similar things can be said about political parties, about which Levinson seems appropriately ambivalent.8 At least under unified government, political parties lubricate the wheels of the quadricameral system and thus partially offset the excessive status quo bias, or bias against implementing the preferences of current majorities, that Levinson identifies. That effect may or may not obtain under divided government as well; but under divided government political parties at least exercise some oversight of the executive branch, which Levinson thinks especially desirable in an era of emergencies.

In related writings Levinson praises proportional representation (PR) and condemns the Anglo-American “first past the post” system of plurality voting in single-member electoral districts.9 However, one of the clearer findings of comparative politics is that the combination of a presidential system with PR is dangerous one, because PR tends to produce multiple small parties and thus removes a counterweight to presidential power that a single major opposition party provides.10 This evidence comes mostly from Latin American democracies that are often shaky in other ways, but conditional on having an independently-elected executive, there is real tension between praise for PR and fear of presidential autocracy. First-past-the-post systems reinforce checks and balances in a presidential system.

Under the second mechanism I mentioned, the broad distribution of undemocratic power may produce a tolerable approximation of democracy, by allowing many groups a privileged forum in which to express their grievances, or by forcing all holders of democratically unjust entitlements to come to the bargaining table. Levinson writes that “the dreadful fact is that none of the great institutions of American politics can plausibly claim to speak for the majority of Americans, even though all assert such claims.”11 But even if the various constitutional arrangements that Levinson condemns all depart from the democratic ideal, specified in majoritarian terms, they do not all depart in the same way, or in the same direction. The varying departures may cancel each other out or even push the overall system towards, not away from, the democratic ideal.

Consider that the Senate favors small states; the Electoral College favors groups with influence in battleground states (which may or may not be small states); the administrative state favors groups who can organize to influence agencies and congressional committees; the prestige and power of the Supreme Court benefit the legal elites who feed in the Court’s wake. However, there is no one group or interest or social class that is uniformly favored by each of these undemocratic institutions. Just as the only real restraint on predation by feudal lords was competition from other feudal lords, so too the undemocratic power of the favored groups, within their domains, is checked by the fact that other groups have undemocratic power in other domains. Getting rid of all feudal lords was best, but failing that, many feudal lords would be better than one or a few.

Here the quadricameral lawmaking system does useful service by forcing many of these groups, each with power that is by hypothesis undemocratic in some domain, to argue or bargain together in order to jointly agree on national policy. Economic models of the separation of powers suggest that where several players, each with dictatorial power in its domain, must agree to a common policy, the results may improve social welfare as compared to a system that relies on elections alone.12 The domain-specific dictators, even if elected, do not act democratically in Levinson’s sense within their individual domains; because of information asymmetries and the imperfections of elections as a disciplining technology, they do not always do what current majorities would prefer. But so long as all must agree on a common policy, the interaction between or among them pushes the whole system closer to satisfying popular preferences, producing a kind of second-best democracy.

The conceptual point that failures of constitutional democracy can be mutually offsetting is not offered to explain the genesis of the relevant institutions or structures. I do not claim that one failure produced the other, although in some cases that may be so. I do suggest, in justificatory or normative terms, that the constitutional order is quite plausibly more democratic than the sum of its parts.

II. The Constitutional Status Quo as a Second-Best

There is a corollary of all this: even given everything else Levinson says, it is not obvious that Jeffersonian democrats should hope for a constitutional convention. I put aside the Burkean claim that a popular constitutional convention might produce disastrous results, such as a constitutionally mandated theocracy.13 Although that is sometimes cast as a claim about the unintended consequences of mobilizing citizens to effect constitutional change, Burkeans would not approve of the product of such a convention even if it worked precisely as intended by producing a genuinely Jeffersonian democratic order, which is Levinson’s hope.

Instead I offer a narrower point: unless all of Levinson’s prescriptions are adopted,14 even a committed Jeffersonian might prefer the current constitutional order on second-best grounds. In the examples above, the worst scenario for a Jeffersonian might arise if the convention adopts some of Levinson’s prescriptions but not all. If, for example, the convention reins in executive lawmaking but leaves quadricameralism unchanged, status quo bias will strangle current majorities; if it retains a powerful presidency but abolishes the Senate and adopts proportional representation in the new truncated Congress, a real worry about executive dictatorship would arise.

This caution, rooted in the theory of second-best, does not show that bad consequences will always result from piecemeal reform; all it shows is that piecemeal reform is not always best, because approximating the good as closely as possible can sometimes produce the worst possible outcomes.15 It then becomes necessary to go beyond Levinson by offering a detailed institutional analysis of the conditions of American constitutional democracy to see whether particular reforms will improve matters. The caution remains operative at this stage, however. Suppose that because of the causal forces that operate in politics, constitutional changes must be effected through “interdependent packages.”16 If so, then simply urging as many piecemeal Jeffersonian changes as possible may produce far worse results, even on Jeffersonian grounds, than the constitutional status quo. The first-best must not be made the enemy of the tolerable, even if we agree with Levinson that the status quo is woefully undemocratic.

* Adrian Vermeule is Professor of Law, Harvard Law School. Thanks to Frank Michelman, Mark Tushnet and Abby Wood for helpful comments, and to the Harvard Law Roundtable for helpful discussion.

1 Sanford Levinson, The Democratic Deficit in America, 1 HARV. L. & POL’Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/levinson_01.html.

2 SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006). For a similar argument, see ROBERT DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2002).

3 R.G. Lipsey & Kelvin Lancaster, General Theory of Second Best, 24 REV. OF ECON. STUD. 11, 11-12 (1956).

4 For an introduction to these aggregation fallacies, see generally Adrian Vermeule, The Judiciary is a They, Not an It, 14 J. CONTEMP. LEGAL ISSUES 549 (2005).

5 LEVINSON, supra note 2, at 29-49.

6 Cf. Chevron U.S.A v. Natural Res. Def. Council et. al., 467 U.S. 837 (1984); Motor Vehicle Mfrs. Assn. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 (1983).

7 David Schoenbrod, Politics and the Principle that Elected Legislators Should Make the Laws, 26 HARV J. L. & PUB. POL’Y. 239, 279-80 (2003).

8 See LEVINSON, supra note 2, at 62-66. For an excellent account of the second-best role of parties in structural constitutionalism, see Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311 (2006).

9 Sanford Levinson, “Imposed Constitutionalism”: Some Reflections, 37 CONN. L. REV. 921, 929-30 (2005).

10 Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 656-57 (2000). Levinson notes this evidence. See Levinson, supra note 9, at 930.

11 LEVINSON, supra note 2, at 49.

12 Torsten Persson et al., Separation of Powers and Political Accountability,112 Q. J. ECON, 1175-92 (1997).

13 Cf. Cass Sunstein, It Could be Worse, NEW REPUBLIC Oct. 16, 2006, at 32.

14 At least the major structural proposals. The point about second-best effects does not apply to all of Levinson’s recommendations – for example, his suggestion for abolishing the bar on foreign-born citizens serving as President – but I have argued that it covers the most important ones.

15 See Avishai Margalit, Ideals and Second Bests, in Philosophy for Education 77 (Seymour Fox ed. 1983).

16 Vicki Jackson, Narratives of Federalism: Of Continuities and Comparative Constitutional Experience, 51 DUKE L.J. 223, 272-79 (2001). See also Mikhail Filipov, Peter C. Ordeshook, & Olga Shvetsova, DESIGNING FEDERALISM: A THEORY OF SELF-SUSTAINING INSTITUTIONS 300-01 (2004) (emphasizing that because institutions are interdependent, the constitutional designer cannot evaluate them piecemeal). Thanks to Mark Tushnet for these references.

Preferred citation: Adrian Vermeule, Second-Best Democracy, 1 HARV. L. & POL’Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/vermeule_01.html.

The Politics of Levinson’s Constitutional Convention

Posted 1995 days ago by HLPRonline editorial staff

by Mark Tushnet

Sanford Levinson asks us to imagine a constitutional convention called to consider revisions in structural provisions that he considers unsound and hard-wired. That the provisions are hard-wired is important to his argument, because he acknowledges that we’ve dealt by interpretation with other provisions he considers unsound.1 We can deal with the hard-wired provisions only by amending the Constitution.

Levinson also argues that at least some of the changes he proposes are unlikely to be adopted through the traditional amendment process, that is, by proposal from supermajorities in Congress and ratification by a supermajority of the states. The reason is that these changes would reduce the power of congressional incumbents — at least enough incumbents to exercise an effective veto over proposed amendments. So, he argues, the people of the United States should organize themselves outside the Constitution’s framework to adopt these revisions by means of a non-Article V convention and ratification process.

I have no quarrel with the theory of non-Article V amendment processes,2 But I have questions about the politics associated with Levinson’s proposals, on two levels: First, what are the political conditions under which his convention would convene,3 and second, what are the politics associated with the proposals the convention might advance for ratification by the American people? I suggest that Levinson’s convention would take place only if the American people came to believe that we were facing a crisis of governance caused by the structural defects Levinson identifies, and that the politics of the convention would be affected by concerns – risk aversion, the mobilization of affect by crisis, and more – that simultaneously suggest cautious pessimism and cautious optimism about the convention’s prospects.

Begin with the convention itself. European constitutional theorists distinguish between the pouvoir constituant – for present purposes, the people convened to create a constitution – and the pouvoir constitueé, the government and, specifically, the form of government called into being by the pouvoir constituant. The important theoretical point is that the pouvoir constituant cannot be controlled by positive law, because positive law is the embodiment of the pouvoir constitueé, even if the positive law is the constitutional provision for amending the constitution. The only tricky question is a practical not a theoretical one: How do you know when the pouvoir constituant has awakened and changed the constitution? The answer is provided by an analysis of social facts, as H.L.A. Hart’s jurisprudence suggests.4 So, the American people have the legal authority to bring about a constitutional convention outside the Article V framework if that’s what we want to do.

Consider these scenarios: (1) The Supreme Court holds that statutes making it a crime to burn the American flag as a means of political protest violate the First Amendment. And, lo and behold, people simply ignore the decision. Prosecutors continue to prosecute, juries continue to convict, jailors refuse to comply with judicial orders directing that they release the offenders, jurors refuse to award the offenders civil damages against their persecutors for violating their constitutional rights. How should we conceptualize this scenario? Maybe as one of widespread violation of fundamental law. The difficulty, though, is that the violation, if such it be, is too narrowly focused. Better, I think, to say that the people, acting as the pouvoir constituant, have amended the Constitution, redefining the scope of the First Amendment.

This example shows that we don’t have to think of the pouvoir constituant acting solely in a revolutionary manner, completely replacing an existing constitution with an alternative.5 Rather, the people can tinker with the constitution outside the bounds of the amendment process set by positive law.

(2) There is a groundswell of support for the election of Arnold Schwarzenegger as President, something plainly barred by the Constitution. But, fearing political retaliation by the voters, state election officials ignore court decisions saying that Schwarzenegger, being ineligible for election, should not be placed on the ballot, and do so anyway in thirty or forty or fifty states. Schwarzenegger wins (or loses narrowly, and perhaps only because he was not placed on the ballot in a few states). Here too, I think we should see this as a case in which political practice has amended the Constitution.

This second scenario provides the transition to my larger questions about Levinson’s enterprise. The people of the United States, acting as the nation’s pouvoir constituant, could convene ourselves into Levinson’s convention, and could consider making only small-ish adjustments in the hard-wired structural provisions he discusses. The Schwarzenegger scenario describes a set of political conditions under which the pouvoir constituant might mobilize itself to override a specific hard-wired provision of the Constitution with which it disagrees. What are the political conditions for the convening of Levinson’s convention?

Pretty clearly, the political conditions cannot be created merely by popular agreement that Levinson’s proposals are good ideas (if they are). One can generate all sorts of good-government reforms, but good-government reforms are actually adopted only when the political circumstances are ripe. Reflecting on the theories associated with Charles Sabel and his colleagues, I suggest that the conditions for convening Levinson’s convention are two: First, nearly everyone agrees that something has to be done, and second, nearly everyone agrees that nothing that’s been tried so far works, and that nothing on the horizon holds out much prospect for success either. Mere policy gridlock won’t satisfy the first condition, because gridlock is fine if not enough people think that something has to be done. Perhaps the agreement that something has to be done occurs in connection with structures themselves,6 but that need not be so. People might agree that something has to be done about some substantive matter. Here the second condition gets more complicated: People have to agree that nothing works, and that the reason for the failure lies in the hard-wired structures that we use to select among policy proposals, which prevent us from adopting proposals already “in the air” but not “on the table” because of those structures.

The “nearly everyone” could be the people of the United States, or it could be political elites, comprised mostly but not exclusively the people’s representatives. Consider a convention convened because elites conclude that something has to be done.7 Of course, members of Congress could have used the provisions in Article V for individual amendments – proposal of discrete amendments by Congress and ratification by the states — to do something about the hard-wired structures.8 Would an elite-driven convention adopt constitutional revisions that could not have been adopted through the individual-amendment Article V process? We can assume that membership in such a convention would overlap substantially with membership in Congress, that some of the non-congressional members would probably aspire to such membership, and that some of those members might even see participation in the convention as a springboard for their political careers. And, other members, we can assume, would be elites associated with existing power structures, including Congress.

Despite all this, the convention might produce revisions in the hard-wired provisions. And yet, perhaps no convention would be needed, were the conditions I’ve described to exist. Both as members of Congress and as members of the convention, elites should calculate what their prospects would be under the revised Constitution. The anchoring heuristic, risk aversion, and the status quo bias probably make it hard for members of Congress today – that is, when the conditions I’ve described don’t exist – to calculate accurately what their prospects are under a revised Constitution. They will anchor their estimates about what is likely to occur to what they already know, which is how existing institutions confer how much power on them. The anchoring heuristic suggests that their estimates about the impact of changes will be closer to the anchor than the impact would actually be; that is, members of Congress may underestimate the changes’ effects. Risk aversion might offset that, leading them to overestimate the effects. So, on balance, perhaps members of Congress – or, perhaps better, Congress in the aggregate – can indeed accurately calculate the effects of changing hard-wired provisions. At that point, the status quo bias, both on the individual level and as an aggregate effect, might kick in: Those more affected by the anchoring heuristic might say, “The changes aren’t going to be that large, so why bother?,” and those more affected by risk aversion might say, “The changes could be disastrous, so why bother?”9

Note, though, that the “something has to be done” assumption provides the answer to the question, “why bother?” That is, were the political conditions I’ve described to exist, political elites would have reason to bother with either making small but potentially beneficial changes, or larger but riskier ones. Crisis conditions mobilize fears and anxieties that can offset risk aversion and the status quo bias. Perhaps, then, if political conditions conduced to convening a convention, we wouldn’t need to hold one.10

The individual-amendment Article V scenario may be more promising than convention one for an additional reason: It makes possible consideration of a more limited number of amendments than in a convention. Recall that the pouvoir constituant can’t be controlled by positive law. If a convention understands itself to be exercising the constituting power – which is, as I’ve suggested, a matter of social fact, not legal theory – it can consider anything, not simply the proposals that motivated its convening.11

With the possibility of placing everything on the table, what would a convention do? For the reasons I’ve sketched, a convention dominated by political elites might confine itself to good-government proposals like Levinson’s – again, given the condition of widespread agreement that something has to be done. A more populist convention might well range more broadly, because its members would not have the detailed knowledge about how politics works within specific institutional contexts that elites, who conduct politics within those contexts, do have.

Among political elites, it is common to fear a populist convention because it would go out of (elite) control and repudiate fundamentals of constitutional democracy.12 Perhaps so, although developments in political technology provide mechanisms that, if used prior to or in conjunction with a convention, might show that such fears are exaggerated.13 A different skepticism is that a populist convention would end up doing almost nothing. Constitutional design is difficult, and the revisions Levinson proposes have their merits and faults. Even if Levinson’s proposals are on balance good ideas, a populist convention might conclude that coming up with a package that makes sense is too difficult.

And yet: Designing the 1787 constitutional proposal was difficult as well. But, in a setting where nearly everyone in the relevant elites and perhaps beyond did indeed think that nothing was working and that something had to be done, the Philadelphia Convention came up with a workable Constitution. Were those political conditions to recur, perhaps those called to deliberate on improving the original design might succeed.

* Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School.

1 Some have been interpreted virtually out of existence, such as the Contracts Clause. See, e.g., Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934). But see Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978). Others have been rendered essentially toothless, such as constitutional protection of core property rights. But see Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (Kennedy, J., concurring in the judgment and dissenting in part).

2 In my view, U.S. constitutional theorists have struggled too hard to make sense of what is basically a simple theory. See, e.g., Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043 (1988); Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 95 COLUM. L. REV. 457 (1995); BRUCE A. ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).

3 Some criticisms of Levinson’s proposals might arise because he presents the proposals as good-government reforms, floating free from any politics at all. But, as I suggest, once we identify the political conditions under which the idea of convening a convention might have some traction, we might understand why Levinson’s proposals would not be merely good-government proposals in that environment.

4 See H.L.A. HART, THE CONCEPT OF LAW 112 (2d ed. 1994) (describing the “rule of recognition” as a social fact).

5 Or, if you like, we could conceptualize the scenario, with what I think is unnecessary complexity, as one in which the people wiped out the old Constitution entirely, then re-enacted it with the single change with respect to flag-burning.

6 This would be so, for example, if Levinson’s belief in a substantially more populist form of democracy than the one we have in the United States became quite widespread.

7 They might do so to forestall the convening of a non-Article V convention. See also note 9 infra.

8 I believe this to be true even of the equal representation of the states in the Senate, for reasons identical to those I sketched in connection with the flag-burning example. Briefly: (1) Consider the use of Article V in two steps, in the first of which Congress proposes and the states ratify the repeal of the restriction on possible amendments contained in the last phrase of Article V, and in the second of which Congress proposes and the states ratify a population-based apportionment of the Senate. (2) Now collapse those steps into one, in which Congress proposes an Article V amendment with two provisions, the first of which is the repeal and the second of which is the apportionment. (3) Now eliminate the first provision, on the ground that the only sensible way of understanding an apportionment proposal is as an implicit repeal of the restriction on amendments.

9 I have framed my argument with reference to members of Congress, but I think it holds as well for political elites in the states during the ratification process.

10 This argument is, I think, independent of another, which might also have some force: Members of Congress would propose constitutional amendments to forestall the convening of a convention in which they might have less influence than they would over proposing amendments themselves.

11 For discussions, see William W. Van Alstyne, Does Article V Restrict The States to Calling Unlimited Conventions Only?, 1978 DUKE L. J. 1295; Walter E. Dellinger, The Recurring Question of the “Limited” Constitutional Convention, 88 YALE L. J. 1623 (1979).

12 In the context of Levinson’s work, see Cass R. Sunstein, It Could Be Worse, The New Republic, Oct. 16, 2006, at 32.

13 A more complete account would have to explain the political conditions under which these mechanisms would be used prior to or in conjunction with a populist convention. One currently available technology is the deliberative poll. For a description, see JAMES S. FISHKIN, DELIBERATIVE POLLING®: TOWARD A BETTER INFORMED DEMOCRACY, http://cdd.stanford.edu/polls/docs/summary/. Another model is the “citizen assembly” of 160 randomly chosen voters convened to consider changes in the electoral system in British Columbia. For a description, see CITIZENS’ ASSEMBLY IN ACTION, http://www.citizensassembly.bc.ca/public/inaction. The assembly proposed a major change, which would have gone into effect upon approval by 60 percent of all voters and by simple majorities in 60 percent of the province’s 79 electoral districts. It was approved by majorities in 77 districts, but received only 57.69 percent of the total vote, and therefore was not enacted. For the results, see ELECTIONS BC, FINAL REFERENDUM RESULTS: REFERENDUM ON ELECTORAL REFORM – MAY 17, 2005, available at http://www.elections.bc.ca/elections/ge2005/finalrefresults.htm.

Preferred citation: Mark Tushnet, The Politics of Levinson’s Constitutional Convention, 1 HARV. L. & POL’Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/tushnet_01.html.

The End of Faith

Posted 1995 days ago by HLPRonline editorial staff

Frank I. Michelman*

Take One, 1987. Sanford Levinson, not without misgivings, signs the Constitution.1 He signs while pondering blights of injustice and imprudence in the constitutional understanding and practice of our day – some of those clearly, in his view, legacies of our country’s historical dalliance with slavery.2 In fact he signs while thinking that his name will be going not only on the post-Reconstruction instrument, but also, inescapably, on the slavery-coddling original of 1787.3 Being able, nevertheless, to discern constitutionally supported remedies for constitutional imperfections, he finds, to his apparent relief, that “I can sign.”4

Take Two, 2004 to the present day. Sanford Levinson declines to sign the Constitution.5 Something, obviously, has changed in the meantime, but what? Not the Constitution. And not any make-or-break development in the body of legal doctrine that issues in the Constitution’s name. Recent judicial glosses on constitutional rights are not what is driving Levinson’s new-found resistance, but rather his deepening dispute with provisions in the Constitution that no mere interpretive gloss could ever mend.6 And what of constitutionally supported remedies? Have they vanished? They have not, and thereby hangs a tale.

In 1988, Levinson explained both his strong wish to sign if possible and the finding that he could gratify it. Start with the question of what it is that one does by signing-or-not. For Levinson at that time, the choice lay between confirmation and repudiation of membership in an identity-anchoring, American communion defined by commitment to the Constitution’s ideals as expressed, say, in the Preamble.7 Given such a vital stake, it was lucky that one could sign without endorsing the Constitution as fault-free or even nearly so. To sign was not to send up two cheers for the Constitution, it was rather to rededicate oneself to “political conversation” aimed at redeeming those preambular ideals, in a political practice through which redemption by such means could be deemed a live possibility.8 And ours could be so deemed, thought Levinson then, if only because of the Constitution’s commendable provision of a usable path to its own correction: not Article V standing by itself, but Article V in company with a commitment to boundless political conversation and its indefinite continuation for which Levinson quite credibly found the Constitution to stand.9

In Our Undemocratic Constitution, explaining again his reasons for signing in ’87, Levinson mentions the Constitution’s idealism and his belief at that time in its potentially redemptive openness to self-correction,10 but this time he says nothing of any dire identitarian consequence of a refusal to sign. To the author of Constitutional Faith, refusal had been tantamount to divorcing oneself from an American political fellowship: it had meant giving up one’s “identity as a member” and thus, in a bit of hyperbole, “everything.”11 Holding such a view, it was understandable that said author would take care not to set the bar for signing too high on the scale of constitutional perfection: “The question is what deviation from perfection is tolerable, justifying inevitable compromises.”12 And the answer was that even “severe” imperfections could be signed for, in view of the Constitution’s idealistic promise and its provision for self-correction.13 As long as even grave imperfections were open to cure by constitutionally supported means, one could keep the faith and sign.

How to account for Levinson’s subsequent change in stance? Between 1987 and 2004, Levinson reports, he has become gravely concerned about barriers raised by the Constitution’s major structural provisions against the practice of democracy in this country, on “any acceptable notion of democracy.”14 These barriers he now finds “almost” insurmountable.15 But with that “almost,” Levinson’s explanation for his shifted stance only serves to reignite our question about what really has changed for him in the meantime. “Almost” insurmountable means not insurmountable. It means – in a particular way I shall soon describe – that the door is still open to a live possibility of constitutional repair by constitutionally supported means. It seems that the Levinson of Constitutional Faith would have walked through the door and signed.

That Levinson found he could sign because the severe defects he saw were reparable by changes that would not, he said, with a nod toward Article V, be “fundamental.”16 The Constitution, he evidently meant, could be fixed without overthrowing it. For one does not overthrow – one rather confirms – an arrangement by moving to repair its faults (as measured by its ideals) using means the arrangement itself provides. That is not apostasy; it is, to the contrary, the essence of fidelity, of faith.

Now you think you see what has crucially changed for Levinson since then. Today, but not then, Levinson targets Article V, formerly a part of the Constitution’s salvation, as itself an intolerable constitutional fault – not only in itself a direct insult to democracy but a terrible obstacle to attainment of constitutional reforms democracy cannot live without. On the terms laid down in Constitutional Faith, that factor indeed would spell the difference between signing and not signing. Or rather it would do so if Levinson means to carry his critique of Article V all the way down, so to speak. But it seems that he does not. Constitutional remedies are still, in his view, available.

Levinson today urges Americans to pressure Congress into calling a convention to propose amendments and send them on for ratification by majority vote in a nationwide referendum.17 If such a course is tantamount to rank evasion of Article V and the Constitution, then of course Levinson cannot not sign what he calls upon others to violate. For most American constitutional lawyers, I grant, that seemingly would settle matter against signing. They would say that Levinson’s is indeed a program of constitutional overthrow, just as they would say the country overthrew the Articles of Confederation by its submission in 1789 and thereafter to rule under the Constitution.18 They would say so because they believe Article V neither authorizes any convention unless petitioned for by two thirds of the states, nor – and this is crucial – allows for ratification of constitutional alterations otherwise than by concurrence of three fourths of the states.19

Levinson, however, is not most lawyers; he is inveterately a thinker outside the box, one reason why we so much cherish his scholarship. In the matter at hand, he expressly takes his stand on a maverick view of the relevant constitutional legalities. Endorsing arguments advanced by Akhil Amar,20 he maintains both that Article V allows Congress to summon a convention on its own motion, and that a convention once called may constitutionally provide for ratification of its product by a national plebiscitary majority.21

Of interest is the fact that Levinson takes these pains to establish the constitutional legality of the political program he urges. Why does he? Even if those who sign thereby bind themselves to act politically within constitutionally charted lines, Levinson is pointedly avoiding any such contract. Why, then, argue as if it binds him?

We’ll come back to this question, but first we must tend to its converse. Since Levinson quite pointedly is not urging constitutional overthrow – he rather argues for the constitutional legality of his plan – why won’t he sign in 2004 on the same basis as before? He still, after all, finds the Constitution offering “a rich, even inspiring language by which to envision and defend a desirable political order.”22 In 1987, that was enough, along with the redemptive promise of lawful amendment and political conversation, to let him sign. Lawful amendment is still workable, he maintains, and so is political conversation (or else his book is the father of all paradoxes).

It seems the stakes have changed for signing or not. Separation from the fellowship, loss of American creedal identity, loss of “everything”: those considerations have dropped from view. Where they were, or perhaps we should say overriding them, is now a scruple against any possible gesture of approbation of the Constitution “today.”23 Compare the Constitution as it aspires to be and might become, Levinson’s focus in 1987. Instead of where one stands with respect to the Sisyphean project of achieving the Constitution’s ideals, the key question of identity has now become “whether I wish to encourage my fellow citizens to reaffirm [today's Constitution] in a relatively thoughtless manner.”24 Believing as Levinson does that today’s Constitution is grievously undemocratic and dysfunctional, he decides to avoid making himself, by signing, a model and teacher of “blind devotion” to it.25 What formerly would have registered as a signal of faith and fellowship now registers as connivance in mass self-delusion.

Levinson’s legions of fans and admirers – none bigger than me – will be variously enthused and alarmed by this somewhat dramatic change of view on his part. What we who have engaged with Constitutional Faith will at any rate understand is that Levinson cannot have come lightly – anything but – to the belief that the herd-mentality signification of signing outweighs the separationist signification of not signing. His assessment of our Constitution’s democratic prospects must have turned bleak indeed.

But that then returns us to the question of overthrowing the Constitution by frankly breaking free of its “iron cage” of restraint (Article V as conventionally construed) on meaningful structural reform.26 Why balk at a bit of a revolution, if things are really so bad, any more than did the framers of 1787? There are revolutions and revolutions, Charles Fried points out.27 Lawyers sometimes can see them where others might not, and not all the ones that lawyers descry – as where a people makes a peaceful end-run around undoubted, regnant legal niceties of basic-law alteration – tear apart the fabric of society; some indeed may repair it. That would appear to be the teaching of Bruce Ackerman, in scholarship Levinson esteems.28 Why then should Levinson go to the trouble of arguing, in company with Amar but with little hope of convincing the legal punditry, in favor of the perfect constitutional legality of the steps he urges?

Maybe simply because he believes it. Maybe because of some felt rhetorical imprudence, in the U.S. here and now, of exposing one’s program to charges of revolution however precious. But the knife of rhetoric cuts both ways here, because to swim with Amar against the predictable counter-torrent of informed opinion on what Article V allows is to risk credibility across the board, including on the meaty points of constitutional structure – the Senate, tri-cameralism, the Electoral College, and the rest – about which Levinson is mainly concerned to persuade the country, on every one of which (as this symposium suggests) he will be battling other experts.

I like a different answer. Twist and turn as we will, there is something in us lawyers that just does not love a revolution, just would rather not flout and spurn the only basic law we have for the time being. Leave it to Sandy, of all people – our most resolutely antiformalist of lawyers, but a lawyer still29 – to hold up the mirror.

* Frank I. Michelman is Robert Walmsley University Professor at Harvard Law School.

1 I refer to Levinson’s meditation in Constitutional Faith (1988), on a bicentennial exhibition where visitors are invited to add their signatures virtually to the Constitution, and he has to decide whether or not to join the party. See SANFORD LEVINSON, CONSTITUTIONAL FAITH 193, 184 (1988) [hereinafter CONSTITUTIONAL FAITH].

2 See, e.g., id. at 189-90.

3 See id. at 184-89.

4 See id. at 93.

5 See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 3-4 (2006) [hereinafter UNDEMOCRATIC CONSTITUTION].

6 See id. at 5-6, 9.

7 See CONSTITUTIONAL FAITH, supra note 1, at 184, 193; Frank I. Michelman, Faith and Obligation, or What Makes Sandy Sweat?, 38 TULSA L. REV. 651, 657-58 (2003).

8 CONSTITUTIONAL FAITH, supra note 1, at 193.

9 See id. at 191, 193.

10 See UNDEMOCRATIC CONSTITUTION, supra note 5, at 3-4 (2006).

11 See CONSTITUTIONAL FAITH, supra note 1, at 184 (“[O]ne gained or lost everything.”). See also id. at 192 (“[R]efusal . . . would require a much deeper alienation from American life and politics than I can genuinely feel.”)

12 Id. at 190-91, 192-93.

13 See, e.g., id. at 190-91.

14 See UNDEMOCRATIC CONSTITUTION, supra note 5, at 6.

15 Id.

16 CONSTITUTIONAL FAITH, supra note 1, at 190.

17 See UNDEMOCRATIC CONSTITUTION, supra note 5, at 173-80.

18 See, e.g., Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475 (1995) (showing the break in legality between the pre- and post-Constitutional regimes of governance in the United States).

19 See U.S. CONST. art. V.

20 Levinson cites Akhil Amar, Popular Sovereignty and Constitutional Amendment in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 89 (Sanford Levinson ed., 1995).

21 See UNDEMOCRATIC CONSTITUTION, supra note 5, at 173-74, 177. Levinson writes “legitimately” where I wrote “constitutionally,” but the two terms can safely be deemed equivalent for him in this context, because he is expressly endorsing Amar’s legalist view.

22 Id. at 5.

23 Id.

24 Id.

25 Id.

26 Id. at 165.

27 See Charles Fried, The Supreme Court, 1994 Term-Foreword: Revolutions?, 109 HARV. L. REV. 13, 20-27 (1995).

28 See, e.g., UNDEMOCRATIC CONSTITUTION, supra note 5, at 22, 177.

29 See Michelman, supra note 7, at 661-63.

Preferred citation: Frank I. Michelman, The End of Faith, 1 HARV. L. & POL’Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/michelman_01.html.

The Democratic Deficit in America

Posted 1995 days ago by HLPRonline editorial staff

by Sanford Levinson

I. Introduction

The term “democratic deficit” has become a staple of contemporary political analysis.1 Most often used to analyze presumed deficiencies within the political order of the European Union,2 it has all too much application as well to our own political order within the United States. Some analysts would no doubt point to the unseemly and often corrupting role played by money in our electoral process; others might note the continuing concerns simply about the reliability of counting the votes that are cast in our elections. No one, unfortunately, could come out of the last two presidential elections or the 2006 mid-term elections with unalloyed confidence that we meet this most basic test of democratic self-government.3 Other analysts have focused on the degree to which the partisan gerrymandering of legislative districts in effect allows representatives to choose their voters rather than the other way around.4 Though I agree that campaign financing, partisan gerrymandering, and the potential of election-day chaos present significant problems for anyone concerned about the future of American democracy, we are deluding ourselves if we believe that solving these problems alone would remove the root causes of our democratic deficit. Indeed, to a significant extent, the American democratic deficit is a function of the Constitution itself.

A provision of the New York Constitution in effect requires the New York electorate every 20 years to answer yea or nay to the question, “Shall there be a convention to revise the constitution and amend the same?”5 The constitution also sets out procedures for holding the convention should the electorate vote in the affirmative.6 The New York constitution is not unique among American state constitutions in offering what one writer has described as a “mandatory referendum” that “enforce[es] the people’s right to reform their government.”7

Imagine that the United States Constitution contained such a sensible provision and, therefore, that we had the same opportunity as New Yorkers and the residents of thirteen other states to take part in such a referendum. Or imagine being in a similar position to voters in France, Holland, Iraq, and Kenya, four nations that in the past two year years gave their publics the opportunity to ratify proffered constitutions, either national (Iraq and Kenya) or transnational (France and Holland with regard to the draft constitution for the European Union). Should we have such an opportunity ourselves, I would vote “yes” myself and heartily advocate that everyone else do so as well. It is well past time to call a new convention authorized to consider the multiple ways in which the Constitution does not adequately protect, in 21st century terms, what we would like to believe is our national commitment to democratic self-government. And, it is worth noting, my zeal to call such a convention is not abated in the least because of the Democrats’ victory in the recently concluded mid-term elections. Indeed, a major point of what follows below is that those victories, however welcome, will have far less impact on the actual course of American politics because of the undemocratic features of the Constitution that I will be highlighting. The fact that Democrats will now be able to prevent some truly awful legislation does not in the least translate into the proposition that Democrats have become empowered actually to enact into law the kinds of progressive legislation presumably supported by most members of the American Constitution Society.

I note at the outset that I have no particular desire to engage in “Founder bashing” or harsh criticism of those who decided in 1787-88 to vote to ratify the constitution placed before them.8 The issue is not at all the sagacity of those men in meeting the challenges of their era; it is whether we should continue to be trapped in the particular constitutional cage they bequeathed us.

The Founders themselves would scarcely be surprised by my questions and criticisms. “Is it not the glory of the people of America,” Madison wrote in Federalist #14, “that . . . they have not suffered a blind veneration for antiquity [or] for custom . . . to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?”9 Madison was, of course, speaking to his own compatriots, but there is surely no reason to believe that the “glory of America” would come to an end with the ratification of the Constitution. Even more telling is a letter written within two months of the Philadelphia Convention by its president, George Washington, to his nephew Bushrod:

“The warmest friends and the best supporters the Constitution has do not contend that it is free from imperfections . . . [t]he People (for it is with them to Judge) can, as they will have the advantage of experience on their Side, decide with as much propriety on the alteration and amendment which are necessary. I do not think we are more inspired, have more wisdom, or possess more virtue, than those will come after us.”10

We should accept Madison’s and Washington’s invitation to talk about some of the “lessons” of our experience with the current Constitution.

What follows consists of two parts. The first part sets out what lawyers might call a “bill of particulars” against the Constitution. What are the particular features of the Constitution that most contribute to a serious democrat deficit in our country today? The second part asks in many ways a more difficult question: How indeed can We the People correct these deficiencies?

II. A Bill of Particulars

The easiest way of setting out the bill of particulars is by asking a series of questions.

1. Even if you support having a Senate in addition to a House of Representatives, do you support giving Wyoming the same number of votes as California, which has roughly seventy times the population? Can a country ostensibly committed to “one person one vote” justify such a system of political representation in the 21st century?

2. Are you comfortable with an Electoral College that, among other things, has regularly placed in the White House candidates who did not receive a majority of the popular vote? Since World War II alone, that list includes Harry Truman, John F. Kennedy, Richard Nixon, Bill Clinton (twice), and George W. Bush. Whether one admires or disdains these presidents, one can scarcely describe them as “the people’s choice” if that term suggests majority support.

Moreover, almost all of these elections were close enough that the shifts of relatively few votes in certain states would have created deadlocks in the Electoral College, requiring, under the Twelfth Amendment, the ultimate decision to be made by the House of Representatives. Assuming the existence of the Electoral College in the first place, one might find this reasonably sensible. But can you possibly believe that the crucial votes in the House should be taken a “one state one-vote” basis? There is no defense for Vermont’s Peter Welch, good Democrat that he is, for having an equal say in such a momentous decision as the entire thirty-two person (and majority Republican) delegation from Texas, or for Alaska’s Don Young being able to offset the fifty-three (and majority Democratic) delegation of representatives from California.

3. Is it appropriate that a president can frustrate the will of a majority of both houses of Congress by vetoing legislation with which he disagrees on purely political grounds? American law professors endlessly obsess about the “countermajoritarian” difficulty allegedly posed by the fact that the Supreme Court has, over our 220-year history, invalidated approximately 165 federal laws.11 Presidents, on the other hand, have vetoed 2,501 laws, many of them of great import.12 Of course, the threat of impending veto directly shapes more ongoing legislative battles than does the possibility that a court will overturn legislation at some indefinite point in the future. In any event, anyone who expects great things from the now-Democratic Congress should be aware that a fire-breathing dragon can emerge at any moment from the White House and negate any legislation that the Democrats can pass.

4. Is it a desirable feature of the Constitution that the impeachment clause enables us to rid ourselves of a criminal president, but leaves us at the tender mercies of an incompetent one until the conclusion of his or her fixed term of office? Might we not have something valuable to learn from the great majority of countries that have some mechanism by which sufficient loss of confidence in the nation’s primary political leader can lead to the termination of his or her tenure in office?

5. Does it make sense that an incumbent defeated in a national election maintains the presidency for a full ten weeks beyond election day, fully capable of making policy decisions that may drastically effect the future of the United States? We the People recognized that the original March 4 inauguration day disserved the nation, and we added the Twentieth Amendment to the Constitution. But January 20, both literally and metaphorically, is far closer to March 4 than it is to the first Tuesday in November. One might contrast our approach with Great Britain’s, where a new prime minister literally replaces a defeated incumbent the very next day. One might, incidentally, ask similar questions about “lame-duck” Congresses, including the discredited Republican Congress that will meet one last time in November-December 2006.

6. Do you really want justices on the Supreme Court to serve up to four decades and, among other things, to be able to time their resignations to mesh with their own political preferences? Almost no other country has genuine life tenure. Most have mandated retirement ages, and many countries have specific terms of service.13

7. Do you support the ability of thirteen legislative houses in as many states to block constitutional amendments desired by the overwhelming majority of Americans and, potentially, by eighty-six out of the ninety-nine legislative houses in the American states?

These questions are largely rhetorical. If and only if you answer affirmatively to all of them are you an unequivocally proud supporter of our Constitution; in that event, you should without hesitation cast a vote in a national referendum to retain it. If, however, you share my own negative response to all, or even some, of the issues I highlight, you recognize that ours is a distinctly imperfect Constitution and that we should, as Washington and other luminaries suggested, spend less time celebrating our Constitution and more time asking if it is indeed serving us well. As a matter of fact, the really difficult task is not to criticize the Constitution but, rather, to suggest feasible ways of responding to its many imperfections.

III. The Pathways of Change

The Constitution contemplates its own amendment in Article V, but renders it virtually impossible. One political scientist has determined that the United States has the most difficult-to-amend constitution in the entire world.14 Bruce Ackerman has noted the extent to which “non-Article V” amendments may have occurred over our history with regard to new conceptions of national power, as occurred during the New Deal.15 Ackerman is undoubtedly correct, but he does not pay adequate attention to the basic imperviousness of the “hard-wired” structural aspects of the Constitution, as set out above.

Article V offers one crucial alternative to the ordinary amendment process, namely, a new constitutional convention, which Congress must call upon the petition of two-thirds of the states. It is unlikely that thirty-four states will agree to a full-scale convention, not least because the fourteen smallest states would not tolerate revision of the Senate. After all, the organization of the Senate assures that highly populous states will receive far less in federal per capita revenues than the less populous, and thus more represented, states. Ross Perot’s colorful terminology of the “giant sucking sound”16 adequately describes dollars moving from New York, California, and other large states to Wyoming, Idaho, and the Dakotas. Indefensible boondoggles like the “bridge-to-nowhere”17 are directly traceable to the Constitution’s allocation of voting power in the Senate.

The kind of change that the United States needs will come only if the public mobilizes itself behind the possibility of a new convention and, in effect, forces Congress to call one even in the absence of state petitions.18 Only if serious discussion begins now and the long, hard work of political mobilization begins soon will it be thinkable, as the country faces ever further fundamental crises, to rise to the example of our courageous and visionary Founders and craft a Constitution that is suitable for the 21st century. I do believe that, should a convention take place, the participants would be well advised to emulate the Founders and establish a new ratification procedure for its handiwork. Just as the Founders paid no attention to the unwise unanimity requirement set out in Article XIII of the Articles of Confederation,19 so should the founders of a constitution adequate to the 21st century ignore Article V in favor of a national referendum.

I conclude with some observations on two very common reactions to my proposal. The first expresses fear at the possibility of awakening the slumbering giant that is “We the People” and actually taking popular sovereignty seriously enough to contemplate the possibility of a genuine national conversation about the adequacy of our Constitution. I fear that those who describe themselves as “progressive” in their politics have become basically Hamiltonian in their fundamental mistrust of their fellow citizens. A movement that fears the people can scarcely hope for success-at least in a democracy. Lincoln spoke of government by the people as well as for them. Are we more comfortable, at the end of the day, embracing the second vision of politics than the first?

A second, linked, response is to point out that the United States is not in fact committed to “democracy” but, instead, is a “republic.” There is a reason, after all, why the term “democracy” appears nowhere in the Constitution, whereas Article IV does guarantee to each State a “Republican Form of Government.”20 In some sense, this point is absolutely correct. The founders were in fact committed to some version of a “Republican Form of Government,” and not to what we would today recognize as a modern democracy.

But the point is that we have, almost entirely for the better, wandered far from our 18th century “republican” roots. The 18th century version of the republican form of government was, among other things, racialist and patriarchal, not to mention religiously skewed.21 For the most part, only propertied, Protestant white men were invited into the republican experiment. Everyone else was pretty much an onlooker. Nor, of course, was there any nonsense about “one person, one vote.”

I do not accuse contemporary partisans of “republican” (as distinguished from “democratic”) government of supporting such outmoded and rejected institutions as slavery or the subordination of women. Still, I wonder whether the impulse to emphasize that the Founders never intended to create a “democracy” is not mired in the same kind of worship of tradition that led earlier generations to oppose prior important changes in our polity. These have included such fundamental changes as the abolition of slavery, the lifting of racial and gender bars to the suffrage, and the turning over of election of United States senators to the populace. In all instances, defenders of the status quo argued that the changes violated our “republican” commitments.

I do not rule out the possibility that my particular suggestions for eliminating the policy veto, the electoral college, the equal-vote allocation of power in the Senate, etc., are not only debatable, but even out-and-out bad. That said, I am confident that simplistic reminders that “we are a republic, and not a democracy,” do not contribute to the public debate unless they are accompanied by a robust theory of precisely how the anti-democratic, anti-majoritarian features of our Constitution serve important public values beyond simply making it difficult for the majority to rule.

I suggest, then, this final act of imagination: you have been invited to consult with a new country trying to draft a constitution. Its leaders describe themselves as devoted to “democratic values.” Do you try to talk them out of that commitment? And, whatever your answer, would you suggest that the “hard-wired” structural features of our own Constitution – in contrast to explicit rights protecting clauses such as those in the Bill of Rights – offer a good model for their country? To the extent that you would veer away from presenting our own Constitution as a model, it is worth asking what besides blind faith would suggest that it is altogether adequate to our own situation.

* Sanford Levinson is W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair at the University of Texas at Austin.

1 A search for “democratic deficit” on Google produces about 454,000 entries.

2 See e.g., Jennifer Mitchell, The European Union’s “Democratic Deficit”: Bridging the Gap between Citizens and EU Institutions, available at http://www.eumap.org/ journal/features/2005/demodef/mitchell/; Andrew Moravscik, Is There a ‘Democratic Deficit’ in World Politics? A Framework for Analysis, 30 Gov’t and Opposition 336 (2004), available at http://www.princeton.edu/~amoravcs/library/framework.pdf.

3 There is, perhaps appropriately, given the 2000 election fiasco in Florida, a raging dispute about the operation of voting machines and the accuracy of the vote count in the 13th Congressional District in Florida, which had been represented by Katherine Harris, the Florida Secretary of State who oversaw the election at the time of George Bush’s “victory” in 2000. See Jeremy Wallace, Political Staffs Head to Sarasota, LAKELAND LEDGER, November 11, 2006, available at http://www.theledger.com/apps/pbcs.dll/article?AID=/20061111/NEWS/611110461/1003/NEWS01.

4 See, e.g., the classic article by T. Alexander Aleinikoff and Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 Mich. L. Rev. 588 (1993).

5 N.Y. CONST. art. XIX, § 2.

6 Id.

7 See Robert J. Martineau, The Mandatory Referendum on Calling State Constitutional Conventions: Enforcing the People’s Right to Reform Their Governments, 31 Ohio St. L. J. 421 (1970).

8 If I were going to be critical of the Founders, it would be because of the compromises made with regard to slavery, an issue no longer before us.

9 THE FEDERALIST No. 14 (James Madison) (Clinton Rossiter ed., 1961).

10 Letter from George Washington to Bushrod Washington (Nov. 9, 1787), in THE PAPERS OF GEORGE WASHINGTON, http://gwpapers.virginia.edu/index.html.

11 For one compilation of invalidations of federal laws, see THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 2117-2150 (Cong. Ref. Service, Library of Congress, 2004) (158 cases); for another, see Lee Epstein et al., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS, AND DEVELOPMENTS 163-166 (3d ed. 2003) (162 cases).

12 See Michael A. Sollenberger, Congressional Overrides of Presidential Vetoes, Congressional Research Service Report for Congress, April 7, 2004, available at http://72.14.209.104/search?q=cache:aCbNW7VBpNUJ:www.senate.gov/reference/resources/ pdf/98-157.pdf+%22Congressional+Overrides+of+Presidential+Vetoes% 22&hl=en&gl=us&ct=clnk&cd=1.

13 See e.g., TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 40 (2003).

14 See Donald Lutz, Toward a Formal Theory of Constitutional Amendment, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 237 (Sanford Levinson ed., 1995).

15 See Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION, supra n. 14, at 63 (1995).

16 See JEFFREY J. MONDAK, NOTHING TO READ: NEWSPAPERS AND ELECTIONS IN A SOCIAL EXPERIMENT (1995).

17 See Carl Hulse, How to Unite Congress: Spend Billions on Roads, N.Y. TIMES (March 11, 2005), at A1, available at http://select.nytimes.com/gst/abstract.html?res= F20816FE3F580C728DDDAA0894DD404482.

18 I do not read the Constitution to say that Congress can call such a convention only if the states petition it to do so. Rather, Congress must call a convention should the petitions come raining in. But Congress always has the option to call a convention on its own.

19 Articles of Confederation art. XIII, para. 1.

20 U.S. CONST. art. IV, § 4.

21 An indispensable book on this point is ROGERS SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN AMERICA (1997).

Preferred citation: Sanford Levinson, The Democratic Deficit in America, 1 HARV. L. & POL’Y REV. (Online) (Dec. 4, 2006), http://www.hlpronline.com/2006/06/levinson_01.html.