our imperfect constitution

Douglas Laycock DLaycock at law.utexas.edu
Mon Nov 28 13:38:18 PST 2005

    I would add the independent executive; parliamentary systems that
make control of the executive depend on control of the legislature seem
to overwhelmingly predominate over separate elections for the
legislature and the executive.  This is the key to Sandy's point about
fixed terms -- it is not that the modern Vice Presidency is a stupid
office, but that we have no way to get rid of an administration that has
lost the confidence of the country.  
    I would also add another of Sandy's favorite themes -- election of
legislatures from single-member districts instead of some sort of
proportional representation scheme.
    These are both related to Howard's points 1 and 2; they have to do
with mistrust of government and a narrow role for government, but I
think they are distinct.  Maybe he meant to include them in 2 as part of
the insufficiency of democracy, but I take that to refer principally to
the Senate, the Electoral College, and perhaps life tenure for the
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)


From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of HOWARD H
Sent: Monday, November 28, 2005 1:54 PM
To: conlawprof at lists.ucla.edu
Subject: our imperfect constitution

 On the question of the relative perfection of our Constitution -- why
is it, do people think, that nations that have adopted constitutions in
the modern era have looked to other models (Germany and Spain were
mentioned, as I recall)? 

It seems to me that there are four basic differences between recently
designed constitutions of other nations that I have seen and our own --
presumably, these differences illuminate the points at which the authors
of these other constitutions (leaving aside, for the moment, the
"democracy deficit" issue in the European case) find our own
constitution wanting.

1.  People in other places conceive of the state as an entity whose
existence is justified by its ability to care for its citizens.  (I take
it that in the U.S. there is no such universal consensus -- it's one of
the things that makes American political debates so interesting.)  By
this standard, the U.S. comes close to being a failed state, and it may
be perceived that part of the reason for this failure is the absence of
constitutional guarantees of housing, employment, education, etc. etc.
So, by this reasoning, when people sit down to write a new constitution
they take pains to include affirmative rights guarantees of this kind,
and in doing so demonstrate their disapproval of the lack of such
guarantess in the U.S. Constitution.  

2.  People in other places consider the U.S. to be insufficiently
democratic, and therefore adopt what they conceive to be more directly
representative mechanisms for the selection of officials.  (Whether the
understanding of "democratic" at work here is sufficiently examined is,
of course, an entirely separate question from *perceptions* of
inadequacy in the U.S. system.)

3.  People in other places see the U.S. courts as rather dysfunctional,
and prefer a Kelsenian model of constitutionalist courts empowered to
issue edicts on questions of constitutional principle, rather than
waiting for these principles to emerge through the process of
adjudication of private claims in the manner of common law. 

4.  People in other places may like federalism for one reason or
another, but think that the current model of dual sovereignty -- at
least as it is articulated in cases such as New York and Printz -- is
archaic, at best, and outright dysfunctional at worst.

Do people on this list think that these are the main reasons that
constitutional authors in other countries do not follow our model?  Are
there additional major areas of concern, or are some of these incorrect?
At the risk of restating the obvious, I am not presently embracing any
of these criticisms, I am only trying to get a sense-of-the-list view of
how those engaged in the project of constitutional design in other
nations might see us.

Howard Schweber

Dept. of Political Science


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