Compromise and utopianism
This is crossposted at balkin.blogspot.com, the address of Balkinization. It is a reply to a very thoughtful post by University of Maryland law professor and political scientist Mark Graber, as follows:
It is, of course, hard to disagree with Mark's general point. All politics involves compromise and tradeoffs, and I have long believed that the enemy of achieving some real goods is a utopian commitment to achieving the best. So one response to Mark is to pick and choose and specific problems with the Constitution and concentrate on those. As regular readers know, my greatest concern these days is the costs of being stuck with an incompetent president/commander-in-chief, which strikes me as an issue of transcendent importance given the ability of same to make truly important decisions of war/peace, life/death. I don't like the presidential veto, obviously, but I'd put that off if there were any prospect of adopting a vote of no confidence. And, for all of my dislike of life tenure for Supreme Court justices, I'd put it at the bottom of the list, since it really doesn't threaten us in the way that an incompetent president can. BUT, and here is where things get truly tricky, if one is also concerned about the way that the present constitutional system makes it difficult to achieve a whole bunch of programs--I am interested primarily in "progressive programs," but I have suggested that political conservatives shouldn't be much happier with regard to achieving their own legislative goals inasmuch as they have them--then it is indeed necessary to start pulling at the thread of our constitutional system even at the risk of unravelling significant aspects of the status quo.
The peculiarity of FDR's situation is that he perceived himself, at least as of 1936-37, as having a compliant Congress that would pretty much follow his lead. He viewed the only impediment to achieving his program as the Supreme Court. Thus the Court-packing plan. We know now that he was living in something of a fool's paradise, that Congress was ready to break free of his reins and would do so after his disastrous attempt to "purge" recalcitrant Southerners in 1938, after which the New Deal was basically over. The next time the stars were aligned for significant change was 1964-66, a period that lasted even a shorter time than 1933-39.
So there may be a time when what appears to be "utopian" may actually be "realistic." Consider Mark's own list of "questions of war and peace, economic reform, [and] environmental degradation." Isn't it more and more clear that our coming to grips with any of these may require fundamental constitutional reform? Or, perhaps things aren't so dire as Mark suggests with regard to our really having to choose. After all, our present reality is that there are no mainstream politicians--and no real popular political movement--willing to ask the kinds of questions about constitutional fundamentals that one found throughout the Progressive period. And it might be that the fear of opening up what some view as the Pandora's box of constitutional reform would lead to the making of certain compromises that are not on the table today. After all, the 17th Amendment finally got through the Senate in part because of a fear that enough states would call for a constitutional convention on the issue of popular election.
Can the American political system really not run and chew gum at the same time?
Professor David Adamany in an essay written many years ago maintained that one consequence of the FDR's Court-packing plan of 1937 was that Roosevelt lost vital political capital that could have been spent on other liberal reforms. Most scholars agree that after the failed Court-packing plan and the failed purge of southern conservatives in 1938, the momentum for the Second New Deal was largely over, not to be revived until the 1960s.
Roosevelt’s experience may teach two related lessons about politics. The first is that politics cannot be about everything at once. Political movements must choose their issues. Abraham Lincoln urged his former Whig followers not to raise tariff issues in order to maintain a united front against the expansion of slavery. Ronald Reagan during his first term downplayed opposition to abortion in order to maintain a united front in favor budget cuts. Roosevelt, by choosing to emphasize judicial reform, diverted vital resources from previous fights for economic equality. The second is that politics makes strange bedfellows. To paraphrase Churchill on his alliance with Stalin, he would make a pact with the Devil to fight Hitler (I’ve forgotten the exact quote). Roosevelt’s coalition of racist southern populists and northern workers (who, as Paul Frymer points out, were not exactly racial egalitarians) accomplished much good. Roosevelt’s effort to forge a purer coalition stalled his program completely.For the past year, my friend and co-blogger Sandy Levinson has called for a political movement for constitutional reform. He is correct to note that many features of the contemporary constitution are undemocratic and that others suffer from different flaws. The call for a political movement, however, entails more than the observation that the constitution is defective. Rather, participants in the political movement must believe the defects of the constitution are significantly worse than the other ills of American politics so that, in the political conflicts between political conflicts, constitutional revision ought to take precedence over questions of war and peace, economic reform, environmental degradation, etc. At the very least, political resources allocated to those political struggles ought to be diverted. This, of course, raises two questions. On what issues should diversion take place? Who should be diverted? Perhaps a political movement for constitutional reform can be done without diversion, but the Roosevelt experience in 1937 suggests that liberals who engage in constitutional reform pay liberal costs for diverting the electorate. At the very least, those who attend Sandy's call for suggestions to how to form this political movement ought to take seriously the costs to other desired political movements and either explain why the benefits will outweigh the costs or why, in fact, this movement for constitutional reform will, unlike any other, have no substantial costs for liberal goals.
It is, of course, hard to disagree with Mark's general point. All politics involves compromise and tradeoffs, and I have long believed that the enemy of achieving some real goods is a utopian commitment to achieving the best. So one response to Mark is to pick and choose and specific problems with the Constitution and concentrate on those. As regular readers know, my greatest concern these days is the costs of being stuck with an incompetent president/commander-in-chief, which strikes me as an issue of transcendent importance given the ability of same to make truly important decisions of war/peace, life/death. I don't like the presidential veto, obviously, but I'd put that off if there were any prospect of adopting a vote of no confidence. And, for all of my dislike of life tenure for Supreme Court justices, I'd put it at the bottom of the list, since it really doesn't threaten us in the way that an incompetent president can. BUT, and here is where things get truly tricky, if one is also concerned about the way that the present constitutional system makes it difficult to achieve a whole bunch of programs--I am interested primarily in "progressive programs," but I have suggested that political conservatives shouldn't be much happier with regard to achieving their own legislative goals inasmuch as they have them--then it is indeed necessary to start pulling at the thread of our constitutional system even at the risk of unravelling significant aspects of the status quo.
The peculiarity of FDR's situation is that he perceived himself, at least as of 1936-37, as having a compliant Congress that would pretty much follow his lead. He viewed the only impediment to achieving his program as the Supreme Court. Thus the Court-packing plan. We know now that he was living in something of a fool's paradise, that Congress was ready to break free of his reins and would do so after his disastrous attempt to "purge" recalcitrant Southerners in 1938, after which the New Deal was basically over. The next time the stars were aligned for significant change was 1964-66, a period that lasted even a shorter time than 1933-39.
So there may be a time when what appears to be "utopian" may actually be "realistic." Consider Mark's own list of "questions of war and peace, economic reform, [and] environmental degradation." Isn't it more and more clear that our coming to grips with any of these may require fundamental constitutional reform? Or, perhaps things aren't so dire as Mark suggests with regard to our really having to choose. After all, our present reality is that there are no mainstream politicians--and no real popular political movement--willing to ask the kinds of questions about constitutional fundamentals that one found throughout the Progressive period. And it might be that the fear of opening up what some view as the Pandora's box of constitutional reform would lead to the making of certain compromises that are not on the table today. After all, the 17th Amendment finally got through the Senate in part because of a fear that enough states would call for a constitutional convention on the issue of popular election.
Can the American political system really not run and chew gum at the same time?
posted by Sandy Levinson at
5:04 PM
7 Comments:
However Utopian it may be to consider at once all the ways in which we would like to change the Constitution, I think it is important to speak out about those ways, so as to have a set of goals.
To me the key political point regarding constitutional changes *underneath* the current policy issues is this: public policy and public opinion have a wide gap. The legislature is not a mirror of or a microcosm of the people via proportional representation. The judiciary is not representative in the way that it is chosen due to a disproportionate and overpowered Senate. There is not only no general election of the president based on one person, one vote, there is no question whatsoever that can be raised or decided by the American people by majority vote (unlike Montana, for example). Overall, these and several other non-democratic shortcomings indicate a conflict between the Preamble and the seven articles and subsequent amendments. This needs to be resolved by a constitutional convention so that policies can reflect the progressive ideal that "the will of the people shall be the law of the land." New Zealand did it in the early 1990s, but they had a provision for a national, popular vote. So Sandy's call for a convention in his wonderful book is necessary to energize the American citizenry to have real hope for real change. The important questions are about how to bring that about while linking this call for a convention to close the gap between public opinion and public policy on all the key issues. So Sandy, how do we get a convention?
"KISS" should be the guiding principle, if you want to avoid utopianism. For all the complaints about big states vs small states when it comes to ratification, in practice the ERA, for instance, failed in states whose population almost exactly reflected their number.
The real obstacle to amendment is not the states, it's Congress, which due to a compliant judiciary, does not NEED amendments it wants, and won't send to the states amendments the states and people want.
Equally, I doubt Congress will permit a Convention, and the Constitution regrettably gives Congress a role to play in that process meant to circumvent Congress: Congress could either refuse to acknowlege the call, or decide that it's own members constituted the ideal delegates for such a convention, and the judiciary would almost certainly declare the matter nonjudiciable, just as it has dealt with violations of the quorum requirement, or pretend legislation passed with different text by the two houses.
Hence, I propose something more radical by far than a convention: The current constitution was adopted in violation of the amendment procedures of the existing Articles of Confederation, but in compliance with it's own terms. I suggest we repeat that precedent, and have 3/5ths of the states ratify an amendment not originated by Congress, to the effect that any amendment ratified by 3/5ths of the states with identical language is a valid amendment, regardless of it's origin. And, of course, cite in the amendment itself the way the Constitution came about as precedent.
One thing we should all be able to agree on, is that the Congressional amendment logjam needs to be broken. Once that's accomplished, we don't need to risk the whole Constitution on one role of the dice, we can fix it incrementally, and Congress won't be able to do a damn thing to stop it.
So Brett,
I like this: "I suggest we repeat that precedent, and have 3/5ths of the states ratify an amendment not originated by Congress, to the effect that any amendment ratified by 3/5ths of the states with identical language is a valid amendment, regardless of it's origin. And, of course, cite in the amendment itself the way the Constitution came about as precedent."
What amendment? (A modification of Article V?)
What process for "the states" to ratify such an amendment? (Both houses by majority? State referendum?)
Such an idea will happen only if it becomes, as Sandy Levinson suggests in his book—a movement.
For your idea to go forward, the two questions above would need to be answered, right?
"As regular readers know, my greatest concern these days is the costs of being stuck with an incompetent president/commander-in-chief, which strikes me as an issue of transcendent importance given the ability of same to make truly important decisions of war/peace, life/death."
YOu may have answered this someplace else, but I have to ask:
How would you write into the constitution the ability to remove an "incompetent" president? How is incompetency defined. Seems to me the vagueness of this term suggests you are add a "vote of confidence" to the political process.
--Tom...
Anonymous asks:
"How would you write into the constitution the ability to remove an "incompetent" president?"
California did it to allow for a popular recall of its governor. Davis out. Arnold in. The people, with such a process, can do so for any reason, including incompetence, or criminality, or hypocrisy, or failing to pursue policies that benefit the majority of the people and reflect their will.
But how to write *anything* into the Constitution is the real problem. Article V Sandy calls the "iron cage." An apt phrase. (Although it was better than the first Constitution's amending article which required consensus of the 13 states.)
Brett's idea of using the 1787 precedent, and be as bold as Madison is a good one.
The other alternative is to use the Preamble as the source of authority to have a popular referendum which is implicit in both the precedent of the 1787 writing of the second Constitution and in the idea that the Constitution comes from and serves We The People (not the states, not Congress, and not anything but the people).
Another way is to create an activist and political movement to amend Article V itself along the lines of the amending article of the 1972 and current Montana Constitution.
In it, it requires the question of a constitutional convention to be brought before the people ever 20 years for a vote. And for the people to call for a constitutional convention, what is needed is 10 percent of the people of the state, including 10 percent of half of the counties, to call for a convention based on their signatures. (The totals are determined by the number of voters in the most recent election of the governor.)
Once a convention were held, the public would vote on its proposed amendments, and a simple majority would determine the outcome.
That works for me.
The above ideas are not mutually exclusive. We need a convention.
My gosh, we need to extend the metaphor of the three branches of government. So if the governance of the nation is a tree, then what is the trunk? What are the roots. I say the trunk is the people. And the roots are liberty, and justice, and the inherent authority of the people to govern themselves.
"As regular readers know, my greatest concern these days is the costs of being stuck with an incompetent president/commander-in-chief, which strikes me as an issue of transcendent importance given the ability of same to make truly important decisions of war/peace, life/death."
My greatest concern is being stuck with the office of president...period. This office is the singularly most undemocratic aspect of our government. It does not matter if the president is chosen by popular vote or by electoral college, or selected by a series of lotteries with rounds of disqualification; in the best possible scenario, a significant portion of the American population will be entirely unrepresented in one (and arguably the most powerful) branch of government.
However, any of the reforms suggested by Sandy or by any of the comments here (to date) will indeed require a "movement" of some sort. I would hope that such a movement would be able to rally around the simple idea that democratic deliberation and broad representation in that deliberation will result in better decisions and better government for the people of the United States, and not try to focus prematurely on which issues in particular should take precedence in that process. If we get a convention, or some alternative people's process, like a referendum, state conventions, or local caucuses, then we can really dig into the arguments for specific amendment proposals.
If we try to build a movement around striking the presidential veto, incorporating term limits for members of Congress, or transitionaing to proportional representation, we are going to lose some potential allies very early who may differ on those specific issues. What we must agree upon are:
1. that a deliberative process with the broadest possible participation and representation will result in optimal solutions; and
2. that only by amending our constitution to move toward democracy will we ever "establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."
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