Our perfect constiitution? What should we be teaching our students?

[RJLipkin at aol.com]

In a message dated 11/6/2005 3:50:33 AM Eastern Standard Time,  
SLevinson at law.utexas.edu writes:

Frankly, I find the citation to  Churchill's dictum on democracy fatuous.  


Sandy misunderstood  my citation to Churchill.  I was rejecting it not 
embracing it.  It's a form of the argument "that's as good as it gets" whether 
stated as a  defense against alternatives to democracy or as a defense of the 
status quo  conception of democracy (in the United States). My post read, and 
forgive my  restating it, but I'd prefer to set the record straight:
 
        "It might be that  Churchill's implicit axiom was correct that we're 
stuck with comparative  judgments about politics and constitutionality alone. 
But I always felt  that limiting discussion to such judgments inhibits 
thinking hard about the  possibilities of revising and improving what now seems 
sacrosanct."
 
        This point was in response  to Eugene's post suggesting, as I 
interpreted it, that our system of removing  chief executives is an effective way of 
doing so, even in emergency  circumstances, and no other industrial democracy 
has chosen voter initiative  removal. My point was that although helpful, 
we're not limited to comparative  judgments about constitutional design. Thus, 
even if all industrial democracies  have worse constitutional systems, and the 
evidence is probably to the  contrary, we still need to recognize flaws in our 
own constitutional design and  think hard about revising it. Churchill's 
admonition, as applied within  constitutional democratic systems--and it has an 
application between different  conceptions of constitutional democracy just as it 
applies between  democracy, fascism, and communism--is anathema to serious 
criticism and revision  of what many consider a failed system of constitutional 
democracy, namely,  American constitutionalism.
 
        In conclusion, my citation  to Churchill was not an endorsement of 
his point, rather it was a rejection  of it. (Indeed, I say as much, I think, in 
print somewhere.)
 
Bobby
 
 
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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