Wednesday, September 19, 2007

Continuing the conversation

Again, let me convey my deepest thanks to those of you who have found this site and wish to engage in conversation about the possibilities of constitutional change. I want to try to respond to any and all comments and suggests, so let me start with the following:

Do you truly think, I say think, not believe because we have been flooded by peoples beliefs since the media brings us these soul searching effusions direct 24/7, there is a possible transformation of the Constitution? The courts seem to be conquering the territory historically reserved to amendments. Is there still the political will to envisage such profound transformations?

I certainly agree that there have been some significant changes in constitutional understandings over the past six years. Indeed, Jack Balkin and I have written about this under the rubric of the rise of the "national surveillance state," and, of course, there is the effort to enhance the powers o of the President. These are all important. BUT, with regard to the issues I am now most interested in, which I describe as the "hard-wired" features of the Constitution last considered by most people when they took boring courses (which my daughter advises me are no longer taught in most school systems) on the formalities of the American system of government, there has been little, if any, transformation since 1789, when George Washington was inaugurated. That is, we continue to have a bicameralism in which each house has an absolute veto over the other; we continue to have a presidential veto, which, to be sure, is far more frequently used today than it was for the first 70 or so years of the American republic; we continue to have equal voting power in the Senate by state; we continue to be encumbered, because of the fixed-term presidency, with presidents who have justifiably lost the confidence of a substantial majority of the public; and so on. I am a huge fan of Bruce Ackerman and his notion of amendment outside of Article V. (Steve Griffin has also developed this argument especially well.) But I think the limits of the Ackermanian "confidence" in such a form of amendment is found precisely in the hard-wired features that have not really been transformed at all. This is why we are forced to think of formal amendment and how such amendments might actually be brought about, with the absolutely necessary first-step being the national conversation that both Larry Sabato and I, whatever our specific differences, are trying to encourage.


Blogger jsalvati said...

Do you claim that 17th Amendment, which provided for the direct election of Senators and thus effectively killed federalism, is a "little transformation" of the structure of American government?

October 16, 2007 4:42 AM  
Anonymous Gerrianne said...

I am active with an impeachment group in Homer, Alaska, and we have used the Constitution more or less as our Bible. Obviously, you and we have dwelt on different sections of the Constitution, and your criticism has shocked me in some ways. But I am energized by the truths you tell about the document, and yes, I do agree with you on all of your criticisms. Gerrianne

December 22, 2007 12:53 AM  
Blogger D. Frank Robinson said...

George Phillies ( a candidate for the Libertarian Party presidential nomination) announced his position of taking the Presidential Oath of Office on the Constitution instead of the Bible jogged my memory and fired off a few neurons.

No criticism of George. He can take the Oath on the Constitution or Man, Economy and State. Nothing in the Constitution requires the use of any book to administer the Oath of Office. I recall when being sworn into the USAF no Bibles were used.

No what troubles me is swearing to uphold the Constitution just isn't good enough. The Constitution as a practical instrument has failed. Swearing on the Articles of Confederation would seem to be an odd thing to do for a Constitutional officer. But I think the Articles would be a more realistic political aspiration.

Bill Moyers interviewed Stanford 'Sandy' Levinson who is advocating a constitutional convention be called in his book 'Our Undemocratic Constitution: Where the Constitution Goes Wrong'. I haven't read this book yet, but I have thought about how the American people could extract themselves from the present oppressive regime of government - I have thought about reform within the framework of the present system; I have considered how the people themselves in the states might convene a convention in each state to propose a new national instrument of government and then take 50 proposals and boil them into a series of run-off plebesites to get a final national plebesite head to head with the current regime constitution and an alternative.

I might advocate such a procedure because I am highly suspicious of a centralized convention with a winner take all outcome without the intermediation popular input - elections between all the proposals. Instead of a two-party election.

But I long ago lost all fear of so-called runaway conventions. In fact, a centralized convention would almost certainly be a deadlocked convention which would be a manipulation to support the status quo regime. A very negative waste of time and aspirations.

On the other hand, I see the holding of 50 simultaneous conventions as the opportunity for a genuine popular consensus to be revealed. It would be most illuminating to compare and contrast those 50 proposals for a national constitution. The result might well reveal a pattern which would argue for a national confederation rather than a unitary system - which is what we now have in the costume of a federal system. Federalism has been discredited by the Constitution we now don't have.

Facing the facts, we really have no Constitution at all. We have a system of complex customs of governance in collapse into a fascist dictatorship.

The best of the culture of the American people and the ideals of the original revolution could best be served by a new confederation of states, perhaps even more than just 50 such states with a new document built directly on the foundation of the Declaration of Independence.

December 22, 2007 5:17 AM  
Blogger Athena said...

Remember "The Time Machine"? We are as prepared to discuss our constitution and democracy, as the young people in that story. Thousands of years of human knowledge have been ignored. Only when we have education in Greek and Roman Classics is our democracy and liberty defended.

"I have indeed two great measures at heart, without which no republic can maintain itself in strength: 1. That of general education, to enable every man to judge for himself what will secure or endanger his freedom. 2. To divide every county into hundreds, of such size that all the children of each will be within reach of a central school in it." --Thomas Jefferson to John Tyler, 1810. ME 12:393

Locke and Jefferson had classical education, and liberal education transmitted the culture essential to our liberty. The 1958 National Defense Education, replaced liberal education with the Prussian model of education for technology for military and industrial purpose. As happened in Germany when the Prussians took control, our Republic is loosing its democratic qualities. We have forgotten the reasoning for democracy, and democratic principles. We are reasoning in favor of a higher degree of authoritarian control over the masses, while suffering amorality. With this education for a technological society with unknown values, and now excessive corruption for lack of shared secular morality, even the value of the dollar is falling.

Please, help raise awareness of this threat to democracy. We have become what we defended our democracy against, by adopting the German models of bureaucracy and education. We are now a mechanical society, superior, only our ability to take military action.

December 22, 2007 10:47 AM  

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