Friday, December 18, 2015

Are We Living a Constitutional Crisis?

[Spoiler alert: politics is depressing, and there is no obvious solution]

We look at our politics and we hang our heads. One of our major parties is putting up candidates for president who are inexperienced and extreme. Members of Congress are too partisan and so loath to compromise that our legislative branch is unable to properly serve our needs. They are more intent on winning than solving the country's woes. It's dispiriting.

We look around for root causes and we see the influence of too much money in politics, the influence of partisan media, a public that is too easily manipulated. We see gerrymandering and venality among our political leaders. Across the political spectrum, the public is frustrated with the inability of Congress to get things done. A November 2015 Gallup poll says that 86% of the public disapproves of Congress. 

But what if the problem isn't the poor quality and pig-headedness of politicians? What if the problem isn't mainly about hyper-partisanship, gerrymandering, and too much money influencing politics? What if what we're living through is a more deep seated structural sickness that goes to the very heart of our constitutional order? What if the problem isn't political, but structural? 

That's what Sanford Levinson thinks. He's a constitutional scholar at the University of Texas Law school. He has been suggesting for some time that what we are witnessing is, at its root, a structural dysfunction that is baked into our constitution. See his University of Maryland law review article "How I lost my Constitutional Faith" (2012). 
In 2012 Tom Friedman lamented: “We can’t be great as long as we remain a vetocracy rather than a democracy.  Our deformed political system—with a Congress that’s become a forum for legalized bribery—is now truly holding us back.” Friedman was right about "vetocracy" says Levinson--but the problem is not political, it's structural.

A "vetocracy" explained Levinson, "allows what some would call 'special interests' to prevent the passage of legislation both supported by majorities of the electorate and in fact conducive to some notion of the 'public interest.'"  Levinson points out that this vetocracy flows directly from our United States Constitution. 

And, of course, we recognize this: even though for the past 25 years a majority of the electorate has supported stricter gun control measures, the minority that opposes any restrictions on gun ownership has been repeatedly able to veto proposed gun control measures. 
Special interests have been able to thwart the passage of gun legislation even though majorities of the electorate support such legislation and even though such legislation is conducive to a reasonable conception of the public good. This is one example, but the same dynamic operates on most proposed legislation: from family leave to global warming; from the minimum wage to social security. 

We don't have enough democracy in our system, says Levinson. The House and Senate have a death grip veto over each other with respect to all legislation. In the Senate, moreover, each senator has the power to filibuster legislation they don't like. Passing legislation that threatens any vested interests is extremely difficult to pass under the best of circumstances; and if that weren't enough, the President also has a veto power over any legislation that does manage to run this gauntlet. In reality we have a tricameral system of government when it comes to passing legislation.

The problem is inherent in our constitution. 

The constitution has a lofty purpose. As articulated in its preamble: 
We the people of the United States, in order to form a more perfect union, 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, do ordain and establish this Constitution for the United States of America.
In order to achieve these goals, the Constitution operates in two spheres: First, there is the guarantee of our fundamental rights; and, second, there are the rules for how political power is distributed and exercised. When we think reverently of our founding fathers and the constitution they bequeathed to us, we tend to focus on the first of these spheres enshrined in the Bill of Rights. The right of free speech, the right of equal protection.... When we think of the second sphere, we accept the mechanics of "separation of powers" and consider this a good thing. We neglect to question (and notice) how the rules for the distribution of economic and public goods are in fact rigged in a way that does not serve our democratic interests. We fail to notice how our two party system does not work well with the separation of powers set forth in the constitution.

Levinson continues to be inspired by "the Constitution of Conversation" that is embodied in the "majestic generalities" of the Bill of Rights ("due process" "equal protection" "just compensation" etc.) . "If one's primary concern about the Constitution is the set of rights that it either guarantees or, at least, allows states and the United States to recognize," says Levinson, the constitution will do. "There is almost nothing in the Constitution that overtly invalidates the achievement of any plausible set of rights, whether one thinks of such things as a right to same-sex marriage or to universal medical care."  Not that Alito and Scalia and Thomas and Roberts would agree, but that is a political problem, not a structural problem. 

By contrast, what Levinson calls the "Constitution of Settlement," the structural parts of the constitution that are not subject to general interpretation but that fix the rules of the game, there the constitution won't do; that's where the problem lies. 

The problem is not that we might elect a Donald Trump. The problem is that a 55% majority in the Senate and a majority of the House cannot pass legislation conducive to a fair notion of the public interest backed by a majority of the electorate because of the veto power inherent in the filibuster. And even if they are able to pass such legislation, it can be vetoed by the President. 

Judges have relatively little say regarding what Congress does to manipulate the economy, to mitigate against threats posed by terrorism, the state of American education, the deficit, and similar problems.  Courts, by and large, can't advance the ball of social progress through interpretation of economic and social legislation. They can periodically interfere and prevent progress by striking down laws as exceeding the powers of Congress... but the role of the court in this sphere is ancillary and only a brake on progress...not an engine for progress.  And that's a problem, because when it comes to such legislation, our "Constitution of Settlement" has fixed the game. 

These structural provisions of the Constitution... make it nearly impossible to pass legislation that truly addresses the major problems of our time. .... It is the Constitution of Settlement that comprises those aspects of the Constitution that are remarkably nondynamic, that are not, as a matter of actual practice, amenable to the sometimes dazzling (or, to their opponents, dismaying) feats of “interpretation,” ... that can enable the necessary adjustment of seeming constitutional verities to the demands of changing circumstances.
Rather than focus on hagiographic explanations of "How do bills become law in Congress," our schools should better educate our children to ask the hard questions:  “why do most bills have no chance of being seriously considered, let alone becoming law?”
Many factors surely go into explaining our complex system. I do not deny the importance of the corrosive role of money in elections or the rise of talk radio and cable news, not to mention the development of a polarized party system that is near-unprecedented in our politics. My own contribution to this discussion, though, is to suggest, indeed to insist, that the Constitution of Settlement deserves far more attention than it receives. 
Levinson expounds on this in an article published at the libertarian Cato Unbound this week:
[O]ne reads ... heartfelt attacks on those with whom one disagrees and the suggestion that if only we could elect one’s own champions, then everything would be all right. If that were in fact the case, the only crisis would indeed be political, and we could celebrate the Constitution as providing the mechanism, through regular elections, of voting the rascals out, albeit belatedly, and placing the right candidates into office.

It is much scarier, in every way, to believe that the Constitution—and our being trapped into its byzantine “forms”—is a bug, and not a feature, of our political system. That is what constitutes our most fundamental constitutional crisis.
There is, of course, also the fact that the structure of the constitution is hugely biased in favor of rural areas  (the House) and small states (the Senate).

And there is the depressing fact that our Constitution is next to impossible to amend meaningfully. The problem of amending the Constitution is so daunting that Levinson jokingly refers to himself as "a crank" for even bothering to point out the problems. And, of course, the electorate is cranky too. It's understandable.

Listen to professor Levinson, speaking at the Cambridge Forum after the 2010 mid-term elections, HERE.

Read the CATO Forum HERE.

You can follow me on Twitter @RolandNikles.

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