Our perfect constiitution? What should we be teaching our
SLevinson at law.utexas.edu
Sun Nov 6 14:17:44 PST 2005
Quite literally the last thing I'd suggest is that we import any institutions from other systems without looking at empirical information about consequences, both there and, to the extent we could make informed predictions, here. Rather, it seems valuable to me to look around at other systems and ask why they are significantly different from ours in important respect (e.g., no life tenure in the really strong sense that exists here) and whether it seems to matter. Frank may turn out to be right--he is yet another person on the list (and at my own institution) whose postings I always learn from--but I don't see how it would hurt to makek the comparative inquiry. Now one possibility is that we will end up saying (something like), "You know, formal constitutions aren't all that important anyway, it's really a matter of political culture, ethnic hostility, etc., etc." This is very close to what a lot of political scientists were arguing when I was in graduate school in the 1960s. But I take it that one thing about which the "new institutionalists" and rational choice devotees alike agree is that structures can in fact matter, that different structures will generate different incentives (or disincentives) which on occasion can really be important.
Three is also the problem of extrapolation. Maybe it's true, empirically, that our Constitution has worked reasonably well once slavery (and another 100 years of segregation?) were gotten out of the way. But, as they say in the mutual fund biz, past performance may not be predictive of future performance. I would argue that the constitutional structure--e.g., the truly lunatic hiatus between Hoover's repudiation in November 1932 and the March 4 inauguration of Roosevelt--, retarded achieving any cogent policy during those crucial months with regard to responding to the greatest economic catastrophe in American history. I believe that our present November-Jan. 20 hiatus is just as lunatic in the speeded-up world in which we live. Carter should not have stayed in office another 10 weeks following his defeat, ditto for George H. W. Bush (who irresponsibly got us into Somalia with an insufficient number of troops), ditto, for that matter, with Bill Clinton in 2000 (had Bush won in November). And there are other time-bombs ticking away, including the lunatic method of breaking electoral college deadlocks and the practical inability to replace dead representatives or disabled senators following a catastrophic attack on Washington. And, incidentally, I don't tink that any of these particular examples have a political tilt. I would hope that every American can realize that there is something amiss about these aspects of the Constitution and would wish that political elites might respond to them.
From: Frank Cross [mailto:crossf at mail.utexas.edu]
Sent: Sun 11/6/2005 11:02 AM
To: RJLipkin at aol.com; Sanford Levinson; mgraber at gvpt.umd.edu; conlawprof at lists.ucla.edu
Subject: Re: Our perfect constiitution? What should we be teaching our students?
Well, I do think that too many people think, or assume, we have the perfect constitutional system. However, I think our track record shows that, once we got slavery/segregation out of the way, our system is a very good one.
I mostly want to take issue with the claim that we are we're not limited to comparative judgments about constitutional design. I think that the suggestion that we should prefer another system, without any empirical evidence of its effectiveness, to be questionable. This is the province of philosophers, not politicians. Of course, if you think our system is failed or miserable, perhaps such a leap might be advisable. But for me, the test of a constitutional system is how well it has served its people (in all relevant respects, including the economic, psychological, etc.) I think the U.S. Constitution looks pretty good by this standard, in comparative measure. I'm loathe to make significant changes based on an imagined alternative; there are too many histories of plans that looked good and proved to have perverse effects.
At 08:01 AM 11/6/2005, RJLipkin at aol.com wrote:
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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