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

Mark Graber mgraber at gvpt.umd.edu
Sun Nov 6 07:38:28 PST 2005

Let me put this argument in a different way.  I think the fundamental
purpose of a constitution is to generate a government that is able to
govern competently and be seen as tolerable (not much more) by most of
the population.  For the past fifty years, however, hijacked by
celebrity constitutional law professors the dominant issues of American
constitutionalism have been reduced to such trivia as"do women have a
constitutional right to not notify their spouses when seeking abortion."
 By "trivia," I do not mean to demean the concerns of both individual
men and women involved in these matters, but merely to highlight that
very little of basic regime politics hinges on the result.  But the
result is that we do not raise more vital constitutional questions with
our students, such as "how does the constitution attempt to generate a
competent government."  Are such institutions successful today (and I
believe they are not.  Is the fault in the structure of constitutional
institutions, as Sandy believes, or in a decaying culture, as I suspect?

Mark A. Graber

>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 11/06/05 3:48 AM >>>
I'd like to offer and extended riff on Malla's excellent question:  My
concern is that we (Americans, law professors, etc.) are too complacent
about the ostensible merits of our Constitution.  (My messages are
coming from Bellagio, Italy, where I have just finished a manuscript,
which will be published by Oxford, called "The Iron Cage of the US
Constitution."  It offers a full-scale critique of the Constitution, in
which I now have very little "faith.")  I think there's lots in what
Mark Graber has to say, for example (there always is); there's lots in
what Eugene has to say (there always is); and so on through all the
members of this list, whose seriousness and dedication I cherish whether
or not I agree with them/you.  But I fear that the subtext of many of
the postings ifs a version of the argument that ours is a basically
"perfect Constitution," in the sense that there's really nothing
drastically wrong with it.  I respectfully disagree.  


Some of what is wrong is only of "theoretical" interest, until it
becomes relevant:  Would anyone on this list defend the
one-state/one-vote rule by which the House will break a deadlock in the
Electoral College?  Other things, like the legal imperviousness of
failed presidents to being forced out of office unless, as with Nixon,
everyone believes they're criminals, are decidedly less theoretical. 
Ditto on the problems attached to "life tenure," which, as Tom Ginsburg
points out in his valuable book on judicial review in Asia, usually
means, in other countries that have "life tenure," service until 65 or
70.  Only in the US, I believe, has judicial office become a feudal-like
personal res, to be held until a Justice dies or chooses to retire well
into his/her 80s.  Most of these are obviously controversial; I know
that Mark disagrees with me about the demerits of life tenure.  But I
think that they are scarcely the subjects of sufficient discussion among
een the elite public, let alone the public at large, or by our students.
 I look forward next year to giving a Constitution Day talk somewhere
lacing into the Constitution, but I strongly suspect that most such
talks are in praise of it, which I think is unfortunate.  


Frankly, I find the citation to Churchill's dictum on democracy fatuous.
 What he said made sense when the alternatives were communism or
fascism.  But what he said is almost completely meaningless if the
debate concerns exactly what democracy means or what political systems
best instantiate it.  One can say, truthfully I think, that
"constitutionalism is the worst system of government, except for all the
others," if the contrast terms are divine right monarchies, Hussein-like
dictatorships, and the like.  But if the issues is what constitutionial
system best captures what we think are the values of that constested
notion called "constitutionalism, then it is simply unhelpful, ato say
the least, to quote Churchill (as modified).  .  


So the question boils down to this, I think:  Is there ANYTHING we might
learn from the fact that most countries in the world--which by any fair
analysis are liberal democracies--have quite explicitly chosen quite
different schemes of constitutionalism from our own?  Is the ANYTHING we
might learn (and teach our students--thus Marla's question) from the
fact that the German and Spanish constitutions have apparently been far
more influential as models for post-1989 constitution drafters than our
own?  Is there anything we can learn from the fact that the two
countries whose "nation building" we celebrate and use as a model for
what is possible in Iraq--Germany and Japan--have constitutions that are
quite different from our own, even when the US influence was presumably
at its peak?  


The most attractive thing about our own Founding Generation,
intellectually, was that they were openly willing to read about what we
would today call comparative government and learn from what they read,
as well as the "lessons of experience."  They also included an amendment
clause, which, as it turns out, is, I think, one of the chief
deficiencies of the Conostitution because it is too stringent, but
which, nonetheless, also symbolizes the fact that they believed the
Constitution might well be found imperfect by future generations and,
thus, subject to change.  They even included a provision for a new
convention.  And, for what it is worth, it is also the case that they
disdained being hemmed in by the procedures set out by the Articles of
Confederation.  In any event, my fear is that we as a culture have
forgotten what is most admirable about the Founders and instead have
become Blackstone-equivalents who simply worship a Constitution that is,
I believe, demonstrably deficient in many respects.  


For what it is worth, I think the contemporary "left," such as it is, is
every bit as bad as anyone else, if not worse, since the preferred
approach to responding to such suggestions as flag-burning and
anti-gay-marriage amendments is often not to denounce them as bad ideas,
which they are, but rather to say that there is something awful about
the very idea of amending the Constitution at all (Kathleen Sullivan's
"amendmentitis" critique), which is a pernicious idea.  It is the right,
for better and worse, that is actually willing to suggest what they
believe to be needed changes (remember the "balanced budget amendment"
in the old days when the Republicans were the party of fiscal


Finally, to return once more to Marla's question, and to other posts of
mine, is it really desirable that law students, who, for better and very
much for worse, will disproportionately become the "leaders of
tomorrow," will graduate well trained in the debates over "levels of
scrutiny" but have almost literally no idea that the rest of the world
has rejected much of what is most basic about the Constitution with
regard to the structures it establishes?  (This is meant as a rhetorical
question, but I fear it is a real one, since one response is that our
students as lawyers will have to master the rhetorical gimmickry of
levels of analysis whereas they will not, as lawyers, ever have to have
informed views about the virtues of quasi-parliamentary systems as
against our own fixed-term presidency.)





From: conlawprof-bounces at lists.ucla.edu on behalf of Malla Pollack
Sent: Sat 11/5/2005 5:38 PM
To: RJLipkin at aol.com; VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
Subject: demystifying the Constitution-- was RE: Controlling
Administrations you don't like

Bobby's post raises a teaching issue on which I would appreciate the
list members' learned insight.  How do you get students (usually unused
to critical thinking) to look at the US Constitution as a set of choice
made by men, as opposed to something too sacred to be disliked even in
details?  Or am I 'odd' for believing that halos are not helpful.


Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at uidaho.edu



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