Archive for December, 2006

Second-Best Democracy

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

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

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.