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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Can this Constitution be Saved?
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Tuesday, September 06, 2022
Can this Constitution be Saved?
Guest Blogger
This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest
2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Bill Galston Our topic is “Can this constitution
be saved?” Two questions arise at the threshold. First, the wording implies
that absent changes, our Constitution is doomed. But is it obvious that the
constitutional status quo is unsustainable? Perhaps our deep problems will
yield eventually to shifts in the balance of political power, or in the greater
convergence of opinions across party lines, or in path-breaking legislation, or
in changes in the rules by which the House and Senate govern themselves. Put differently: I’m not
convinced that Sandy is right when he states, in italics, that “a
substantial responsibility for the defects of our polity lies in the
constitution itself.” If I were to enumerate, in order of importance, the
principal contributors to our current woes, the Constitution with all its
imperfections wouldn’t be close to the top of the list. Here’s my
counter-thesis. For the past three decades, our political parties have been deeply
divided and closely divided. Our institutions work tolerably well
when the parties are one or the other, but not both. The parties were deeply
but not closely divided during much of the 1930s, and FDR had few problems
governing except for the ones he brought on himself. Conversely, when there’s
substantial ideological overlap between the parties, cross-party coalitions can
govern, even if the two parties are close to parity. But in our current
situation, each party can check the other, generating gridlock that arouses
public discontent and lowers confidence in government. Party divisions that are
both deep and close also change the tone of our politics for the worse. The
party in the minority has reasonable hopes of regaining the majority, creating
an incentive to intensify conflict and avoid compromise, while the party in the
majority has an incentive to avoid sharing credit for policy success with the
minority. This ceaseless high-decibel conflict is another key source of public
mistrust. The second threshold
question: the Constitution must be saved from what? Violent overthrow?
The collapse of public belief in its legitimacy? We may have come close to the
former on January 6, 2021. If so, it’s not obvious that changing the
Constitution is the best way of preventing a repetition. Reforming the
Electoral Count Act and clarifying the command structure of the military in
relation to the civilian police are more likely remedies. As for the latter, I
see no evidence that the people have withdrawn their support from our basic constitutional
framework—certainly not to the extent that Sandy argues they should. I suspect that the
concerns animating our topic are less apocalyptic, though hardly trivial.
Thoughtful scholars and public intellectuals as well as elected officials and
social movements have come to believe that the Constitution as it now stands
violates principles that all liberal democracies should honor. This would be a
21st century version of the abolitionists’ rejection of the
Constitution as it stood in the 1840s and 1850s as (Sandy quotes William Lloyd
Garrison) “A Covenant with Death and an Agreement with Hell.” I’m not sure which
contemporary flaws in the Constitution would qualify as equivalently fatal. One
often-cited candidate is the document’s departure from the principle of equal
weight for the votes of all citizens. To state the obvious, the Senate
blatantly violates this principle. It is an example of what Sandy terms “the
many structural provisions that place almost insurmountable barriers in the way
of any acceptable notion of democracy.” I find it hard to place
the unequal representation the Senate embodies on the same moral plane as the
acceptance of slavery. Nor am I convinced that the ills flowing from unequal
representation in one chamber of a bicameral legislature represent anything
close to an emergency. Sandy cites political scientists who say that it
promotes the transfer of resources from large poorer states to smaller but
richer states. I wonder about the significance of this finding, assuming arguendo
that it’s valid. Both our system of
taxation and our social safety net are strongly progressive. Families in the
top 10% of the income distribution account for about half of national income
but pay 70% of federal income taxes, so states such as New York and California,
with lots of rich people, will contribute disproportionately to the federal
coffers, even if they also have lots of poor people. The inflow of money to
lower-income people—through Medicaid, social assistance programs such as food
stamps, means-tested premiums for Medicare, and Social Security, whose benefit
structure tilts the returns to lower-income participants—may not be enough to
counterbalance the outflow through income taxes. New York may well be a net
contributor to the federal coffers. So what? Besides, legislation can happen
only if the House of Representative, whose seats are proportional to
population, gives its assent, so the structure of the Senate cannot be an
adequate explanation. Nor does the big
state/small state divide affects the partisan balance the way that most people
think it does. In 2009, when Democrats had 60 seats in the Senate, Democrats
occupied 14 of the 20 seats in 10 smallest states. By 2021, when the Democratic
total in the Senate had declined to just 50, Democrats still controlled 12 of
the 20 Senate seats in the smallest states. Shifts in North and South Dakota
accounted for the Democrats’ modest losses. The real point, I
believe, is that in recent decades Democrats have lost ground—massively—in
small towns and rural areas, which probably are overrepresented in the Senate.
This raises an old question: should legislative representation take into
account the distinctive interests and outlooks of minority groups that may not
have adequate voice in a purely proportional system? This said, Sandy has
pointed to many significant flaws in our constitutional order, the most serious
of which, I believe, is its excessively demanding amendment process. This
increases the pressure on constitutional institutions to accomplish the changes
through legislation, interpretation, and executive fiat- that would occur
through amendment in a better-balanced system. For example, I regard the
Administrative Procedure Act as, in effect, a legislated constitutional
amendment that formally authorizes the administrative state. But the form that
this and other such changes take leaves them open to constant attacks on their
legitimacy. Short of a
constitutional revolution, unfortunately, there’s not much that can be done
about this. Unless a convention of the states assembled pursuant to Article V
proceeds to ignore the language of Article V, the current structure of the
Senate cannot be changed, and even permissible amendments will need the assent
of 38 states. As we all know, however, the Philadelphia convention of 1787
ignored the Articles of Confederation, exceeded its authorized writ, and
invented the 9-state requirement for the ratification of the constitution it
had drafted. I’m not willing to take the risk that such an ultra vires
procedure would entail, but others may be. In the meantime, we’ll have to hope
that we can muddle through, using the loose joints in our ramshackle
constitution to mitigate its structural defects. William A. Galston holds the Ezra K. Zilkha Chair in the
Brookings Institution’s Governance Studies Program, where he serves as a Senior
Fellow. You can contact him at wgalston@brookings.edu.
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Books by Balkinization Bloggers Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |