An even worse constitution than the US: California

Mon Feb 16 13:45:21 PST 2009

... well, one of the things I would ask is why formalism is juxtaposed against "those who see that a constitution is not simply a legal document." It seems to me that Dworkin is the place where non-formalists who still desire better "legal" answers can reside. We wouldn't want to say that rigorous and serious conceptualism would never be part of any epistemological program. And we surely would not want to say -- particularly of American constitutionalism -- that the program shouldn't be justificatory. Surely these are the wrong paths. We would rather want to say that, somehow, the right answer is the intersection between a large policy direction evidenced by the course culture is taking in history (right now), and the reasonable allowances that such is afforded by the formally articulated legality. In other words, if you cheat words, you do it only for large cultural and historical trends and with inferences that do the least injustice to the
 words. 

You know, one of the problems with living constitutionalists is that they are very often skeptics without properly knowing philosophy. If, instead of tearing down the idea of structured discretion, they would simply build a program for their desires consistent with it -- like Dworkin does -- the debate would become things like "the Ninth Amendment can be used for ..." rather than "quoting anything is wrong because the constitution is more than words."

And I don't see at all why Americans in particular should NOT accept harsh consequences here and there when the rules of autopilot say so. One of the reasons why is for the same reason that we derive a law-and-society framework -- this is what American culture really is. Have you ever watched how crazy football has become? So much of the game is about whether the rule was followed (replay angles, etc). If the rule isn't followed, the culture cries foul. This is not a natural law culture by any stretch of the imagination, and it also isn't a Rousseauean political culture, no matter what the left thinks.

Now, I am neither a positivist nor a formalist. I think positivism and positivistic culture can be seriously problematic. But what I am saying is that our system is such that judges really can only INTELLIGENTLY innovate (with legitimacy) and that, when they do, they must show how it fits within "core articulated ideas." We can dispute which ideas are core, but we really shouldn't be disputing that (a) the core can be found (in articulated format); and (b) that it must govern.

So much of what the left calls "politics" is nothing but poor epistemology.  

Dr. Sean Wilson, Esq. 
Assistant Professor
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860

________________________________
From: Miguel Schor <mschor at suffolk.edu>
To: Sanford Levinson <SLevinson at law.utexas.edu>; Richard Kay <Richard.Kay at law.uconn.edu>; CONLAWPROF at lists.ucla.edu; conlawprof-bounces at lists.ucla.edu
Sent: Monday, February 16, 2009 3:01:52 PM
Subject: RE: An even worse constitution than the US: California

It is not just academics who apparently have forgotten that a constitution is not simply a legal document.  Adam Liptak has an interesting article in the NYT  (the url is http://www.nytimes.com/2009/02/17/us/17bar.html?hp) entitled "Roberts Sets off Debate on Judicial Experience."  C.J. Roberts lauds the fact that every member of the Court is now a former appeals court judge because this results in “a more legal perspective and less of a policy perspective.”  How can we be better off with a Court that believes that formalism is the best way to interpret the open-ended provisions of the Constitution and that it should ignore the policy implications of its decisions?  What's really weird about this view is that judges on constitutional courts in civil law jurisdictions (and historically the civil law sought to limit judicial discretion by means of formalism) largely eschew formalism.Miguel Schor  Associate Professor of Law  Suffolk University Law
 School  120 Tremont St.  Boston, MA 02108  617-305-6244  SSRN Webpage http://ssrn.com/author=469730      
---- Original message ----

Date: Mon, 16 Feb 2009 13:15:50 -0600
From: "Sanford Levinson" <SLevinson at law.utexas.edu>
Subject: RE: An even worse constitution than the US:  California
To: "Richard Kay" <Richard.Kay at law.uconn.edu>,<CONLAWPROF at lists.ucla.edu>,<conlawprof-bounces at lists.ucla.edu>

One certainly shouldn’t infer from a
single case “that American constitution rules in general are defective.” 
The problem is that there are far more illustrations of the point.  And the
further problem is that the legal academy by and large isn’t interested
in the consequences of “hard-wired” constitutional rules since they
don’t generate what we define as “interesting litigation.” 
Thus our propensity to fiddle while Rome
burns (unless someone is prosecuted for arson).

sandy

________________________________

From:
conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Richard Kay
Sent: Monday, February 16, 2009
8:15 AM
To: CONLAWPROF at lists.ucla.edu;
conlawprof-bounces at lists.ucla.edu
Subject: RE: An even worse
constitution than the US : California

Alternatively, one could say that the rules are doing
the work they were intended to do. Constitutional rules exist to make it harder
to govern by withdrawing certain possible courses of  action.  ("The
constitution recognizes higher values than speed and efficiency.") It
seems the problem could as well be described as the refusal of the elected
officials to govern within the rules.That kind of human failure can confound
any set of rules, even the most modest ones essential to the definition and
functioning of any government,   

Having
said that, it is true, of course, that certain sets of rules are more prone to
this kind of failure than others. Maybe the California super-majority rules are an
example. I wouldn't infer from this case, however, that American constitutional
rules in general are defective. 

Richard
S.Kay                      

Wallace Stevens Professor of Law              

University of Connecticut
School of Law
65 Elizabeth St
Hartford , CT
06105
USA

Tel  (860) 570-5262
Fax (860) 570-5242

Please address all future mail to richard.kay at law.uconn.edu

" Sanford Levinson "
<SLevinson at law.utexas.edu>
Sent
by: conlawprof-bounces at lists.ucla.edu 
02/15/2009 09:18 PM  

To 

"Heyman, Steve" <Sheyman at kentlaw.edu>,
"Mark Tushnet" < mtushnet at law.harvard.edu >,
<SCHROEDER at law.duke.edu>, <RJLipkin at aol.com>,
<wasserma at fiu.edu>, <CONLAWPROF at lists.ucla.edu>  

cc 

Subject 

RE: An even worse constitution than the US :   California 

Californiais at the
brink of complete meltdown because of the inability to get the required 2/3
vote in each house of the bicameral legislature (in order to raise taxes).
 This is another example of the fact that formal rules matter, that it may
not be possible to "work around" any and all rules simply because the
alternative is catastrophe.   

Any
American law professor invited to give advice on constitutional design should
have the grace to say that the best advice we could offer is to stay away from any
and all American constitutions, save, perhaps the Nebraska one (though I
certainly don't rule out the possibility that some other states may also have
sensible constitutions). 

sandy

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