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

Sanford Levinson SLevinson at law.utexas.edu
Sun Nov 6 08:54:54 PST 2005

My sincere apologies to Bobby.  I was not thinking of his specific post, which means exactly what he says it does, but rather the general citation of Churchill's dictum (along with 'the Constitution is not a suicide pact") as a stopper to certain kinds of arguments.  I think that he and I substantially agree on the problems attached to the dictum.
: RJLipkin at aol.com [mailto:RJLipkin at aol.com]
Sent: Sun 11/6/2005 8:01 AM
To: Sanford Levinson; mgraber at gvpt.umd.edu; conlawprof at lists.ucla.edu
Subject: Re: Our perfect constiitution? What should we be teaching our students?

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.)
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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