Wednesday, December 26, 2007

Compromise and utopianism

This is crossposted at, 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:

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?

Monday, December 24, 2007

Pluralities and majorities

Mort writes that he " cannot understand[my] need to dilute his argument by saying that, although George W. Bush, did not have a majority of the popular vote, neither did Bill Clinton, George H.W. Bush, Richard Nixon and whoever else. The question is not a majority of the vote, which would be nice, but a plurality - in other words, very simply, the MOST VOTES. George W,. Bush had neither the majority or plurality of the votes in 2000 but the others cited by Professor Levinson all had a pluralty."

I will be furious about the 2000 election, and Bush v. Gore, until my dying day, so I don't want to make light of his point. But I think it is a big mistake to assume that what happened in 2000 is necessarily the worst feature of the electoral college. One problem with focusing on Gore's narrow national victory (about 500,000 votes) is that we'll just never know what the result would have been had the campaign been run in a system of a single nationwide vote. That is, the election strategies are based on the electoral college itself, which explains Gore's decision to spend so much time in Florida in the last week of the campaign (as did Bush). In a truly national campaign, each would have tried to run up the national vote and return, perhaps, to their "base" states in an effort to encourage everyone to get out and vote, etc. I think we should be at least as equally bothered by the far greater statistical likelihood that we will send to the White House presidents who have ONLY plurality support, without majority support. By definition, this means that a majority of the country may well not have real confidence in him/her, including all-important confidence in his/her judgment regarding what most concerns me about presidents, which is their ability to make literally life-or-death decisions regarding war and peace. We'd be far better off with a French-type system of run-offs, or an "instant runoff system" called the Alternative Transferrable vote, used in San Francisco.

Imagine that George W. Bush had actually beaten Gore by a few votes nationally, but continued to have less than a majority of the vote (because of Nader and the other "third party candidates). I think we would have every right to be just as upset. Recall that Richard Nixon came in first, with 43% of the vote, in 1968. We'll never know, of course, who would have won in a run-off between him and Hubert Humphrey, but one can easily suspect that the consequences for the US might have been different in at least some important respects (beginning, most obviously, with appointments to the US Supreme Court).

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.

Direct Democracy

One of the posters asks me my views about "direct democracy," i.e., going straight to the people and skipping what James Madison, among many others, believed was the all-important mediating role of elected representatives. My general preference is for representative democracy, precisely because, at best, elected representatives can take the time to become fully aware of the complexities of issues before voting on them. IF, however, one becomes disillusioned with representative democracy, as is all too possible in a political world dominated by money, then one can see something like the "initiative and referendum" or even "recall elections," which we in this country associate especially with California, as playing an important "safety valve" role. Many countries around the world combine direct with representative democracy. The most frequent user of referenda is Switzerland, which most of us, I presume, view as a sane and stable country (unlike the image that some have of California!).

I can't say I have fully worked out views about the role that direct democracy should play in our system. I'm confident, though, that it would properly become the subject of discussion (and ultimately decision) at a constitutional convention.


I explain below that I am selecting out a number of responses to the Bill Moyers interview and responding to them specifically, in order to encourage more focused discussion on the particular issues that are raised.

Scott writes, "Okay, let's assume we were to eliminate the Senate," and then goes on to say that this would transfer much too much power to urban centers. I talk about "small states" in one of the following posts, but I want to specify that I have no desire to "eliminate the Senate." I think we're much too large a country to get along with a one-house legislature. I do believe that a number of small states should emulate Nebraska's example and shift to unicameralism; Jesse Ventura suggested that, altogether sensibly, for Minnesota, but the proposal went nowhere. But I think that Texas is already too large to make unicameralism desirable.

Also, even though I rail against the degree of disproportionate power held by small states in the Senate, I could easily live, as the result of a latter day compromise, with a more modest boost for small states. The "two-senator" bonus for the electoral college helps small states, but, obviously, it has significantly less impact than does the equality of voting power in the Senate itself. Larry Sabato, a political scientist from Virginia who has written a very interesting book, "A More Perfect Constitution," that also suggests constitutional reform and calls for a new convention, argues in favor of giving the largest states four senators, mid-size states three senators, and leaving small states at their current two. (This would also have the virtue, Sabato believes, of increasing the size of the Senate, which would be desirable given the incredible workload and sweep of issues that the Senate must consider.) I would still be unhappy if Wyoming had "only" 35 times the voting power of California instead of its present 70. But if, say, we ended up with the small states having 5-10 times the voting power, as part of a deal to get support for other desirable changes, then I would almost certainly sign on.

No one can believe in the possibility of a "perfect constitution." One is always going to have to compromise.

The electoral college

Another responder writes that "I think the electoral college can be salvaged by eliminating the winner take all system. We could assign 1 electoral vote to the winner of each House district (which, with the exceptions of the Wyomings, et al) are of close to equal population, and just assign the two 'senate' electoral votes to the state's overall winner."

This might well be preferable to the system we have now (and requires no constitutional amendment inasmuch as the "winner-take-all" system is the product of state decisionmaking, not of any constitutional requirement), BUT I have one huge reservation: We are already suffering terribly in the House of Representatives from the consequences of "partisan gerrymandering," where, as two friends of mine once wrote, "representatives pick their voters rather than the other way around." If we shifted to the district allocation mode of assigning electoral votes, there would be ever greater incentives for both of the major parties to engage in ever worse gerrymanders and the further poisoning of our politics. Thus, if we are to retain the College, I would prefer that votes simply be assigned on the basis of statewide percentages, with the two "Senate votes" going to the statewide winner. This would basically eliminate the "human dimension" of the electoral college.

I recently engaged in a debate on the electoral college with professors John McGinnis from Northwestern and Daniel Lowenstein from UCLA, both of whom vigorously disagree with me. You can find it at

My own preference is to eliminate the electoral college and shift to a popular election with a mechanism to assure that the ultimate winner can plausibly claim majority support. The French have a two-stage election; San Francisco has an "instant run-off" so called Alternative Transferrable Vote. No doubt this would be one of the most vigorously debated issues at a Convention.

Small states

Another responder writes that I " gave short shrift, if any, to the reasons for the elements of the "hard-wired" constitution you find unacceptable. The Electoral College, in addition to the Senate, was set up to balance the densely-populated states against the sparse-populated ones, and I doubt that split has changed. You seem to want a democracy, which was precisely what could not be accepted by all the people putting the constitution together."

First, as an historical matter, the writer is absolutely correct: The Constitution never would have been written and then ratified in 1787 had the Connecticut Compromise not given the small states disproportionate power in the Senate. But the same can be said about compromises with slaveowners. These were both necessary given the political circumstances of the moment. Delaware was prepared to walk out, with some other small states--Rhode Island never even bothered to show up in Philadelphia--and torpedo th eConvention. Madison in fact was despondent about the Connecticut Compromise and even gave brief thought to leaving the Convention, but he (correctly) decided that achieving even a flawed Constitution was better than no Constitution and the high probability of a "United States" that would very shortly divided itself into three countries along the Atlantic seaboard.

So the question is why we, 220 years later, should feel so in thrall to a compromise reached on raw political grounds. We certainly wouldn't feel any similar commitment to the compromises on slavery, nor, to take a modern example, should those of us who support the United Nations feel committed to maintain support for a veto system in the Security Council that can be explained only by reference to the particular "great powers" that won World War II.

I'm not so antagonistic to small states as I might sound. BUT, I see no good reason for giving them extraordinarily disproportionate power in the 21st century, power that they use, as any political scientists, including Madison, would predict to line the pockets of their constituents while being relatively disregardful of the needs of the overwhelming number of Americans who live in larger states and big cities. If we were talking about "ordinary" affirmative action (which, I should say, I tend to support, although with some reluctance), we would be talking about quite marginal benefits, e.g., the use of race or ethnicity as a "tie breaker." No one would suggest, though, giving his/her "favorite" ethnic or racial group 50 times the voting power of majority whites.

There is a long and commendable tradition in the US of concern about "tyranny of the majority," and the Senate is often defended as a barrier against that. But we should recognize that one can also have de facto "tyranny of the minority," which is another way of referring to an indefensible status quo that is basically entrenched because the Constitution makes it next to impossible to engage in fundamental reform.

On Ron Paul

I am absolutely delighted by the number of people who responded to the Bill Moyers inteview. I thought it might make some sense to select out some of the specific points (or arguments) so that we can generate threads on them.

One person wrote, for example, "As a supporter of Ron Paul, I wonder how his leadership style might facilitate any of the great insights you brought up. "

I find Ron Paul a very interesting figure. As you will not be surprised to learn, I'm not a libertarian, so I don't support his general take on politics. That being said, I've written elsewhere that of all of the Republican candidates, he's the one I respect most in terms of sheer integrity. What you see is what you get; he is not in the least shaping his campaign according to the wishes of focus groups and the like. We used to call this "leadership." I was amazed to hear him say, in one of the debates that he has changed his position on the death penalty and is now opposed to it at the national level. The only rational explanation for this is that he has indeed changed his position, because he surely could not have believed that he would pick up votes in the Republican primary by saying this!

I also have relatively little touble accepting Rep. Paul's view that we have given far, far too much power to the President to initiate wars. Congress, including the Democrats then in charge of the Senate, behaved disgracefully in writing Pres. Bush a blank check because Tom Daschle thought it would be easier to run the 2002 Senate campaign on the basis of domestic issues than debating Iraq. And, as one of you pointed out, small-state Senator Robert Byrd was one of the few senators to press the issue.

By no means do I oppose everything in the current Constitution. But, obviously, I think there is enough that is problematic about it that I want to emphasize what needs correction.

Also, to answer another question, my current candidate of choice is Sen. Obama, largely because I have most trust in his judgment, and I believe that his election would help transform the current dreadful image of the US around the world. But I will happily vote for any Democrat who gets the nomination.

Thursday, December 20, 2007

Greetings to viewers of the Bill Moyers Journal

Should you be interested in weighing in on the issues that Bill Moyers and I discussed regarding the wisdom of assessing the Constitution against 21st century values and realities, please feel free to respond to this posting. It would be wonderful to get a serious conversation started!

sandy levinson

Tuesday, December 18, 2007

Students view the Constitution

I had the immense pleasure of visiting Medfield High School in order to discuss the ideas in the book, which had been assigned. I thoroughly enjoyed the three classes that I met, and it was extremely interesting to hear the reactions to the ideas. I have to say at the outset that all of the comments, without exception, were at least as cogent and to the point as any I have received from other audiences, which have usually been considerably older and, at least formally, "better educated."

I'm hoping that the students (and others) will take this opportunity to continue the conversation. There is almost literally no group I'm more interested in hearing from, precisely because they (you) will inherit the country that is shaped, for good and for ill, by the Constitution.