our imperfect constitution
James G. Wilson
james.wilson at law.csuohio.edu
Tue Nov 29 07:31:35 PST 2005
Don't forget outcomes. Many people do not want to emulate a
country that treats its poor and workers with contempt by refusing to
provide basic health care and a living wage; that does little to protect
its industrial base; that has by far the largest military budget in the
world; that is constantly at war; that has one of the greatest
disparities in wealth and income in the developed world; that has the
largest prison system in the free world; that taxes the wealthy at the
same overall rate as the working poor; that spends over one hundred
million dollars on a lousy gubernatorial campaign in which nothing of
content was said; that permits massive amounts of free pornography in
every household; that has a declining educational system for all but the
affluent; that fails to provide basic preschool support to the poor;
that has a popular culture which constanty reaches ever lower lows; that
Of course, it is hard to know how much our complex written
Constitution has to do with these developments (although there is no
doubt that one of Madison's goals was to protect that discrete and
insular minority known as the wealthy). Nor is it clear that the
inclusion of "positive rights" can make that much difference: can and
should unelected judges determine, as a matter of constitutional law,
who should get expensive heart transplants?
There is no easy out for those of us who are outraged by the
existing political culture. Just as we don' t know how much our written
Constitution, as interpreted by its guardians, has harmed our society,
nor can we be sure of its past and continuing benefits. Powerful,
conservative interests might well seize control of any effort to
transform that document. The Burkean conservative in me---which lives
uneasily with the angry New Dealer who feels this country is in rapid
decline--is fearful that my abstract reasoning and my passionately held
political beliefs may be more harm that good if I disrupt this basic
part of our system.
So, the solution may well be to go back into the political arena
and fight for workers' rights there. The Democrats need to reject their
wealthy patrons and upper middle-class intellectuals who have been far
more concerned with social issues than with bread and butter issues. It
has succeeded before: it can succeed again.
Douglas Laycock wrote:
> 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 judiciary.
> 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 SCHWEBER
> 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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