our imperfect constitution

Tue Nov 29 09:41:39 PST 2005

I agree with the outrage-but I think that at least a few of our problems
could be fixed by changing our approach to the written constitution.  For
one think, the Reconstruction Amendments should be read to overthrow any
sovereign immunity the states have to underprotect their citizens.  The
double jeopardy clause might be enforced without the (only a lawyer could
accept) gloss that you can only be tried once by each different sovereign ie
feds, states, and Indian tribes. Primarily, I think that the document should
be read as entirely changed by the Civil War to prioritize people - not
money, not corporations, not states. 

Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at uidaho.edu

208-885-2017

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of James G. Wilson
Sent: Tuesday, November 29, 2005 7:32 AM
To: Douglas Laycock
Cc: conlawprof at lists.ucla.edu; HOWARD H SCHWEBER
Subject: Re: our imperfect constitution

       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

UW-Madison

  _____  

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20051129/34729c08/attachment.htm