our imperfect constitution

Tue Nov 29 13:54:35 PST 2005

James G. Wilson wrote:

"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 than good if I disrupt this basic part of our system."

The notion that some of us, if not all, contain conflicting impulses of 
importance, was nicely epitomized by author Rita Mae Brown in her book 
on writing when she said:  Each of us (in Western Civilization) stand 
astride two horses, each galloping in opposite directions, the one being 
the clear, hard thinking of the Greeks and the other [in her words] the 
Judeo-Christians.  Walt Whitman spoke to the effect:  I contradict 
myself?  So I contradict myself, for I contain multitudes.

So does Constitutional Law, from what I can see of it.

rs

>        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
>>
>>------------------------------------------------------------------------
>>
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>
>------------------------------------------------------------------------
>
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