institutional design

Constitutional Conventions: Getting 20/20 Vision About Them by 2020

Crosspost from Balkinization

The Constitution in 2020 is at once an effort to articulate a theory of progressive constitutionalism that can counter the ascendency of conservative constitutionalism’s theory of originalism – and is an effort to imagine what such a progressive constitutionalism can realistically hope to accomplish in the medium term. Notably, a majority of the essays in the book appear to give up on judge-centered approaches to constitutional change and seek to bring about progressive ends through legislation and social movements. Whether this is because the authors of the essays just don’t have their five votes on the Supreme Court as of yet (the cynical perspective of one recent review) – or whether it is because they have really grown convinced of some of the disadvantages of judge-led constitutional change – the volume makes clear that today’s mainstream liberals in the legal academy are no simplistic defenders of judicial review, judicial supremacy, and judicial liberal activism. The romance of FDR might remain, but the romance of the Warren Court has faded for most. This shift has been underway for some time, to be sure, but today’s law students are more likely to see their liberal law professors questioning Roe in earnest than previous generations. Brown may still be untouchable; but this book helps the next generation see clearly that if they want to own their Constitution and have it represent the best of their own constitutions, there are democratic methods outside the judiciary to make that happen.

Yet with all the enthusiasm progressives now display for methods of constitutional change outside the courts – and some scholars in the volume can’t help themselves from bubbling over with hope in light of Obama’s election – no one in the book spends any time getting serious about the structural deficits of our virtually-impossible-to-amend document that render democratic constitutionalism particularly hard to achieve. No one takes seriously the idea that maybe progressives ought to be devoting efforts to unlocking some of the structural barriers to facilitating democracy, both locally and nationally, through formal constitutional change. Larry Kramer’s contribution to the book hints in this direction, perhaps, if only obliquely. And surely if Sandy Levinson had been invited to write a chapter, more of this perspective would have been included.

One might have expected more attention to recent battles in state constitutionalism in the volume especially, if only because progressives have ultimately prevailed in state courts with arguments the federal courts have thus far rejected.  But the ongoing liberal appropriation of “federalism” – a theme seemingly central to democratic constitutionalism – has virtually ignored the possibility of taking seriously some recent calls for constitutional conventions at the state level. One might learn a great deal about how to campaign for and run a successful constitutional convention to fix some of our structural barriers to a more robust democracy through super-democratic means that are neither judicial nor “merely” legislative.

A federal constitutional convention by 2020 is unlikely, of course.  But several states are considering tinkering with their basic charters: New York and California are very populous states with very active conversations on the subject. Progressives should be interested in these efforts for their own sakes because local politics must be part of any serious progressive agenda. They should be interested instrumentally and pragmatically too because statewide constitutional conventions can teach us a lot about how to run an effective federal convention down the road. A fabulous resource to get a historical and legal perspective on state constitutional conventions more generally is available here.

In light of my service on policy and legal teams helping “Repair California” think through the details of its own call for a constitutional convention and my own recent proposal with Chris Elmendorf of UC-Davis for a way to fix California’s pathological budget process entrenched in its state constitution, my aim at the upcoming conference celebrating The Constitution in 2020 in October will be to shine a light on the details of modern constitutional convention design and the challenges in store for progressives willing to entertain the idea that structural change and new basic charters may be necessary to give democratic constitutionalism a fighting chance.  We won’t have a federal convention by 2020.  But we can by then hope to watch and influence some conventions as they unfold at the state-level, learn to overcome “conventionphobia,” and, ultimately, refine what a convention should look like when we realize a new federal constitution is finally necessary to reclaim ownership over our political community from the dead hands of the past.

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Ethan J. Leib is Associate Professor of Law at University of California Hastings College of the Law. He will be appearing on Saturday's "Localism and Democracy" panel with Rich Schragger (University of Virginia School of Law, "Federalism All-the-Way-Down"), Ilya Somin (George Mason University School of Law, "The Promise and Peril of Federalism in the 21st Century"), and Ernie Young (Duke Law School, "Preserving Democracy's Laboratories").
 

The Failure, and Future, of Constitutional Theory

Crosspost from Balkinization

Constitutional theory is in need of a paradigm shift.  It is obviously important to articulate an inspiring vision of what the country is and what we want the country to be, one that has the moral force and clarity to attract the kind of political support needed for meaningful policy change.  I agree wholeheartedly with the contributors to the Constitution in 2020 volume that constitutional law has a crucial role to play in this regard.  But in exalting constitutional law as an expression of nationhood and identity, and elevating the Constitution to the level of civic religion, we risk losing sight of a fundamental truth: constitutional law is, like any other form of law, an instrument of policy and a form of social technology.  It is no small matter to engineer peace and prosperity on a national and even international scale.  Yet a successful constitution is precisely such a feat of engineering.  Consider the most grievous calamities of the last century.  War, famine, genocide: we have not nature, but rather the failure of our methods and institutions for resolving disputes and allocating resources, to blame for these.  In other words, it is our technologies of government that fail us catastrophically. 

Law is a central component of the technology of government.  And if law is to society as software is to a computer, then constitutional law is the operating system: it is a framework that enables, constrains, and structures human activity.  From this perspective, it should be obvious that we can speak of both constitutional success and constitutional failure.  And it should also be obvious that what humanity desperately needs is a body of knowledge that guides societies toward constitutional success and away from constitutional failure. 

I would like to suggest that constitutional theory would be a more worthwhile endeavor, of greater value to humanity, if it were to do two things.  The first is to articulate the criteria of constitutional success, or the goals that constitutional policy should aim to achieve.  The second is to identify the constitutional choices that best advance those goals.  The most basic criterion of constitutional success is the Hobbesian one of avoiding a state of “perpetuall warre of every man against his neighbor,” in which conflict is endemic and resolved on the basis of strength and strength alone.  E. Adamson Hoebel, writing a half-century ago on “the law of primitive man,” deemed it the goal of law to avoid “ghastly explosion,” and he argued as a historical matter that those human societies that have endured have done so by expanding the scope of the law, by creating “effective instruments of procedure,” and by limiting and allocating the use of force in such a way as to enable “social authority” to prevail in the last analysis.  The limitation and allocation of force; the establishment of effective procedures for the emergence and resolution of conflict; the survival of society without “ghastly explosion”: although Hoebel does not call these criteria of successful constitutionalism, that is precisely what they are.

A society such as our own that is fortunate enough to take the possibility of “ghastly explosion” for granted (or, perhaps more accurately, one that has already endured its ghastly explosion and expunged its most egregious constitutional defect by way of a bloody civil war) rightly has higher and more extensive ambitions for its constitutional law than mere survival.  But it should be equally obvious that other countries are not (yet) so fortunate.  Nor is the international community, which remains characterized by what Hoebel called “primitive law” on a global scale.  Law exists, but vindication of the law is largely a matter of self-help; rules exist, but enforcement and observance of the rules occurs on the basis of non-legal considerations, and at the discretion of the powerful.  The prospect of ghastly explosion stalks the system.  The international legal order needs to be infused with principles capable of commanding allegiance, and to be backed by mechanisms and institutions that are capable of rendering those principles meaningful yet do not amount to a new, uniquely terrifying Leviathan of global government.  In short, the world is in need of constitutionalization.

Can constitutional theory rise to the challenge?

 Are we to have the kind of constitutional theory that is narrowly preoccupied with judicial hermeneutics?  Should we spend another fifty years debating the implications of the so-called “counter-majoritarian dilemma,” on the questionable assumption that such a dilemma even exists?  Is constitutional theory to be a parochial discipline that reaches no further than the country’s borders and treats the rest of humanity as largely irrelevant, except perhaps for historical purposes?

Or will we have the kind of constitutional theory that concerns itself with questions of institutional design, and on ascertaining which interests and outcomes are privileged by what kinds of rules, practices, and structures?  Will constitutional theory look beyond our borders for a better understanding of the impact of different design choices?  Will constitutional theorists seek to discern in domestic practice what is worthy of global constitutionalism, and find in global constitutionalism what is worthy of domestic practice?  Can constitutional theory help to foster a dialectic that advances not simply the development of American constitutional law, but rather the development of constitutionalism more generally?

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David S. Law is Professor of Law and Professor of Political Science at Washington University School of Law. He will be appearing on Saturday's "Constitutional Theory" panel with Jamal Greene (Columbia Law School, "How Constitutional Theory Matters"), Sophia Lee (University of Pennsylvania Law School, "Administering the Constitution in 2020"), and Richard Primus (University of Michigan Law School, "The Necessity and Peril of Ethical History").

 

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