Saturday, December 22, 2007

Recapturing the spirit of the Progressive Era

"Rachel" writes, "I am wondering if you are familiar with The Spirit of American Government by J. Allen Smith? He makes some of the same points about the constitution that you do."

The tactful suggestion that my arguments aren't original is absolutely correct. One of the points that I try to make, both in the book and when I give talks, is that I'm really trying to recreate a mood that was remarkably present at the turn of the 20th century and has almost disappeared today: a willingness to look unsentimentally at the Constitution and to ask whether it serves us well today. Smith's book was written in 1907. 1913, of course, would see the publication of Charles Beard's Economic Origins of the Constitution. More to the point (since I don't particularly share Beard's "founder-bashing") , serious critiques of the Constitution were being offered by Woodrow Wilson, the author of Congressional Government, and Teddy Roosevelt, who was supporting the initiative and referendum and was raising questions about judicial supremacy. The 'teens were a period of constitutional debate and change, beginningn with the 16th and 17th Amendments in 1913, which, taken together, help to explain, for better and, for some you, for worse, the rise of the modern national government, as well as the 19th Amendment that guaranteed the vote to women. The Prohibition Amendment is not well regarded by most people, though, as Robert Post has noted, it was supported at the time by many political progressives concerned about the social ravages of alcoholism, as conservative moralists. That it ultimately failed may tell us important things about the limits of government without necessarily impugning the motivations behind it.

Since World War II, however, there has been only one truly important Amendment, the 22nd Amendment designed to exact revenge on FDR by limiting presidents to two terms. And that was added in 1951, by definition well over a half-century ago. And, note well, it's a "structural" and "hard-wired" amendment. It has nothing to do, formally, with any of the hot button issues that divide us and is incapable of manipulation by clever manipulation to allow, say, Bill Clinton or George Bush to run for a third term regardless of what it says. As a matter of fact, I think we're probably better off with the Amendment that without it, given the power of modern presidents over the media, but I'd feel better if Congress could, by a 3/4 vote, suspend the Amendment if, for example, we were at war and the public had genuine confidence in the Commander-in-Chief who also had great diplomatic skills. Would anyone really have wanted to replace FDR in 1944, even if a good argument can be made that someone else should have become president in 1940?

It would indeed be a good thing if everyone read Smith and discussed what parts of his critique still apply and which parts have become truly outmoded.


Blogger Brett said...

"but I'd feel better if Congress could, by a 3/4 vote, suspend the Amendment if, for example, we were at war and the public had genuine confidence in the Commander-in-Chief who also had great diplomatic skills."

Don't worry, when it comes to the Constitution and the courts, "With (bad) faith, all things are possible." At this point, there's nothing in the Constitution that's so clear, the Court couldn't avert it's gaze from a violation, if the violation looked like a good idea.

Heck, just hold the election as normal, and then when counting the electoral votes, the House can report that the incumbent miraculously won. They'd be lying? By the same principle as the enrolled bill doctrine, the Court would refuse to care.

December 23, 2007 9:23 AM  
Anonymous padrone said...

One of the problems with folks wrangling over the Constitution is that it is always done by lawyers. Lawyers and the courts have already destroyed most of the (apparent) original intent of the document. It was written, after all, by men speaking English, not the legalistic rhetoric of modern day America.

As to the point at hand: Professor Levinson's ideas would have more weight if (1) the US was meant to be a Democracy, and (2) if the federal monolith we have today was the original intent of the states which voluntarily formed the Union.
The electoral college works because federal elections were meant to be state driven. The Senate works because it allows less populated states some equal footing with the huge population centers of the urbanized states. It is all an attempt to give some say, some balance to each state.

I know attorneys like to find "intellectual" quirks in things like the Constitution, whether to validate or invalidate. The founding fathers were something no modern attorney can handle: simple and forthright. So they spoke; so they wrote.

December 24, 2007 6:25 PM  

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