Mark's Inquiry about Constitutional "Science"

Tue Feb 17 14:29:26 PST 2009

Mark:

One wonders if constitutional design is either a philosophy or an aesthetic rather than a science. If so, it is surely possible for later incarnations to be deficient to their priors. (Even in "science," laboratory experiments fail). Given this, a better set of question might be: (a) what are the philosophic views behind each engineering product; and (b) how well do they fit culture (like the fitting of a dress to a body (an aesthetic))?

One would assume that any constitutional program that was foreign to its culture would see that culture rearrange it (see Iraq). But one also wonders whether within culture (particularly, western) there is not confusion about philosophy that underlies design rather than a science of development.

As an aside, I have always thought that parliamentary systems fit homogeneous people better than constitutional systems. It seems to me that the logic of Senates and oligarchy built into American constitutionalism had something to do with (a) believing policy to be nothing but hegemony; and (b) making it difficult for government (and majorities) to rule. American constitutionalism impliedly suggests that majorities are nothing epistemologically special (which suggests that impulse and urges are local and transitory). One would use this model where one: (a) distrusted governance; and (b) where diverse interests who were uniting had plenty to lose. If you were going to break apart into more homogeneous little units, there would be less reason to configure the merry-go-round and more reason to see policy as "problem solving" (perhaps even as its own science). You don't see too many bicameral city councils. (Hence the movement among some states to
 have "administrative disintegration" in the 1900s). Hence the reason that Europe favors one sort of architecture over the other? 

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: Mark Graber <MGRABER at gvpt.umd.edu>
To: CONLAWPROF at lists.ucla.edu
Sent: Tuesday, February 17, 2009 3:59:28 PM
Subject: Re: An even worse constitution than the US: California (this series ofexchanges)

I am curious as to why the age of a constitution or a constitutional amendment does not matter when evaluating the merits of constitutional change.

Consider the following two claims.  First, constitutional design is a science that has exhibited substantial improvement over the past 200 years.  If this is true, then we might predict that new American state constitutions and newer American state constitutional amendments are superior to older American state constitutions and older state constitutional amendments.  Second, once a certain, very low threshold has been overcome, Americans as a whole do not seem capable of improving state constitutions.  An examination of constitutional amendments over the past X years demonstrates that on average, people would be at least as well off if none were passed.

Of course, finding measures for well being is difficult and contestable, but presumably the Levinson/Griffin proposal for constitutional change requires something like the first theory we might think of whether the first theory might be supported by empirical evidence, and what such an empirical demonstration (which will be weakly probabilistic at best) might look like.

MAG

Matthew Holden, Jr.
Henry L. and Grace M. Doherty Professor Emeritus of Politics, University of Virginia

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-----Original Message-----
From: Steven Jamar <stevenjamar at gmail.com>
Cc: CONLAWPROFS professors <CONLAWPROF at lists.ucla.edu>
Sent: Mon, 16 Feb 2009 3:27 pm
Subject: Re: An even worse constitution than the US: California

I agree it is not "obviously wrong" to submit property rights to a  
supermajority rule.  I just think it is as wrong-headed as the Lochner  
era approach of the Supreme Court was.  This is, of course, an extra- 
legal judgment.

As to losing people and businesses to other states, it might be  
exactly the right thing to have happen to, in the immortal words of  
that legal and social policy savant Scrooge, "reduce the surplus  
population" in an otherwise attractive state like California.  :)

But I would take the success of high-tax states like Maryland,  
Minnesota, Massachusetts, and California, over, say low tax ones like  
Arkansas and Mississippi on pretty much any indicia one wishes to use  
(other than taxes themselves).

Steve

-- 
Prof. Steven D. Jamar                    vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Justice http://iipsj.org 
Howard University School of Law          fax:  202-806-8567
http://iipsj.com/SDJ/ 

"Education:  the path from cocky ignorance to miserable uncertainty."

Mark Twain

On Feb 16, 2009, at 3:09 PM, Ilya Somin wrote:

> I agree that, in some ways, worse and better are in the eyes of the  
> beholder. That, of course, is true of any constitutional restraint  
> on legislative power, including on speech, privacy, religion, etc.  
> Steve says that "We are talking about money, not speech,  equality,  
> or religious freedom here."  However, the power of the state to take  
> away the people's money is sometimes just as great a restraint on  
> freedom as its power to regulate these other matters. At the very  
> least, a large infringement on property rights may be a greater  
> wrong than a very small infringement on, say, freedom of speech. If  
> the latter can be barred altogether by a constitution, it does not  
> seem to me obviously wrong to subject the former to a supermajority  
> rule.
>
> It may be true that California's levels of taxation and spending are  
> actually optimal (though I doubt it). But they are still

> dysfunctional in a multistate system where people and capital can  
> move elsewhere. It might be optimal for the federal government to  
> impose these levels of spending/taxation on all states  
> simultaneously (e.g. - through a system of federal grants and  
> increased federal income taxes). But for just one to adopt them is  
> simply a formula for losing taxpayers and investors to other states  
> - which is exactly what has happened in CA.
>
>
>
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu 
> Website: http://mason.gmu.edu/~isomin/ 
> SSRN Page: http://ssrn.com/author=333339 
>
>>

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