Tag: the Constitution

Blame It On the Constitution

The New York Times treats us today to an op-ed by Prof. Sanford Levinson entitled “Our Imbecilic Constitution,” with the remedy recommended for such imbecility taking us well beyond reforming the document’s amendment provisions. The problem, you see, is that our government has become “dysfunctional” owing to “gridlock.” Like all good Progressives, Levinson is a government man: he sees problems for which no less than the federal government is the ready solution, but that’s unlikely under the strictures our “imbecilic” Constitution imposes on it.

Not surprisingly, therefore, he starts with a complaint about federalism: in the Senate, small states have power equal to that of large ones, which in turn implicates the Electoral College. The remedy for the problems Levinson believes can be traced to those checks on power is to unleash popular will through a more direct democracy. Thus he lauds Theodore Roosevelt and Woodrow Wilson, Progressives who “seriously questioned the adequacy of the Constitution.”

Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote.

Never mind the merits of those accomplishments, Levinson next offers various state constitutions as models for what might be, starting with New York’s, its fifth such document. One hopes the Knickbockers get it right before too many more years pass, because if dysfunction be the touchstone of failure, the Empire State has come close to it.

Then again, Levinson offers this idea for fixing congressional gridlock:

We could permit each newly elected president to appoint 50 members of the House and 10 members of the Senate, all to serve four-year terms until the next presidential election. Presidents would be judged on actual programs, instead of hollow rhetoric.

“Programs:” We need to get things done. Isn’t that what government is for?

To be sure, there are problems today that cry out for solutions, yet most are not inherent in the human condition but rather are the result of government “programs.” After all, it’s entitlements, individual and corporate, that have given us our massive deficits and debt, to take only the largest and most conspicuous examples. That is the one thing that Levinson does not seem to appreciate.

As compared to the rest of the world, our Constitution has stood the test of time fairly well. The problems we now have did not arise from abiding by its limitations but just the opposite. The Progressives ignored those limits. It’s that behavior, on which the New Deal and the Great Society doubled down, that has brought us to this impasse, with the country immersed today in the politics of a zero-sum game. We don’t need a new Constitution. We need to return to the one we have.

The Constitution, Gridlock, and American Politics

University of Texas law professor Sanford Levinson has an op-ed in today’s New York Times on the thesis of his new book, Framed. He makes the observation that too many Americans “have seemingly lost their capacity for thinking seriously about the extent to which the Constitution serves us well.  Instead, the Constitution is enveloped in near religious veneration.” That’s a fair point. I have no doubt that if, say, podcast interviews were around in the 1790s, Patrick Henry, George Mason, James Madison, and the other leaders of that time would tell us very frankly what they disliked about the Constitution and what improvements they thought would be beneficial. Such discussions are pretty rare nowadays and that is lamentable. A few weeks ago, Professor Levinson  stopped by Cato for an informal luncheon to discuss his book and reform proposals.

Professor Levinson and Cato scholars tend to disagree about his view of political  ”gridlock” and whether it is responsible for the electorate’s low opinion of the Congress and of the federal government more generally. Speaking only for myself, I agree with Professor Levinson that the Article V amendment procedure has proven to be a defect and I explain why here (pdf).

Related material here and here.

Hey Daily Kos, Cato Is Not A ‘Republican-supporting’ Institution

I guess it’s not a huge surprise that a writer at The Daily Kos would characterize Cato as “Republican-supporting” when it suits a purpose. Just for their future reference, here is a laundry list of positions taken by Cato scholars that most Republicans (Beltway Republicans, at least) tend to abhor:

We libertarians continue to be amazed at the inconsistency exhibited by the left and the right: conservatives dislike government power except when it comes to militarizing our foreign policy and, oftentimes, running people’s personal lives; liberals profess dislike for government power except when it comes to micromanaging the economy, which can quickly morph into micromanaging everything else. The Nanny-state is pushed equally by liberals and conservatives.

Ralph Waldo Emerson once said that “A foolish consistency is the hobgoblin of small minds.” (my emphasis) I think Cato scholars demonstrate a different kind of consistency in our principled adherence to limited, constitutional government, individual liberty, free markets, and peace. Our positions do not change whenever Republicrats replace Democans in office.

Our Constitution Is Out of Step with the Rest of the World

Is the Constitution out of date? That’s the impression that comes across from an article in yesterday’s New York Times, written by the paper’s crack Supreme Court reporter, Adam Liptak. It comes in turn from an article he points to by two law professors, David S. Law at Washington University in St. Louis and Mila Versteeg at the University of Virginia, scheduled for the June New York University Law Review. In it the authors conclude that the Constitution appears to be losing its appeal as a model for constitution drafters in other countries, despite its having served that role up until as recently as 1987, the year of its bicentennial. So what’s changed over the past quarter century?

Unfortunately, from the Times article we don’t get a clear picture of just how it is that the constitutions other countries have drafted in recent years differ from our own, except for the emphasis throughout the piece on rights. Yet right there is a clue about what’s going on. On that score, in fact, Liptak cites striking comments Justice Ruth Bader Ginsburg made in a television interview during a visit to Egypt last week:

“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

Liptak then notes, not entirely accurately, that “the rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber.”

To be sure, the rights enumerated in our Constitution and in the amendments that were added later, including in the Bill of Rights, are few in number. But numbers alone, like rights alone, tell only part of our constitutional story. To tell the story more fully and accurately, we have to step back a bit.

It’s true that our Framers, unlike many others, especially more recently, did not focus their attention on rights. Instead, they focused on powers— and for good reason. Because we have an infinite number of rights, depending on how they’re defined, the Framers knew that they couldn’t possibly enumerate all of them. But they could enumerate the government’s powers, which they did. Thus, given that they wanted to create a limited government, leaving most of life to be lived freely in the private sector rather than through public programs of the kind we have today, the theory of the Constitution was simple and straightforward: where there is no power there is a right, belonging either to the states or to the people. The Tenth Amendment makes that crystal clear. Rights were thus implicit in the very idea of a government of limited powers. That’s the idea that’s altogether absent from the modern approach to constitutionalism—with its push for far reaching “active” government—about which more in a moment.

During the ratification debates in the states, however, opponents of the new Constitution, fearing that it gave the national government too much power, insisted that, as a condition of ratification, a bill of rights be added—for extra caution. But that raised a problem: by ordinary principles of legal reasoning, the failure to enumerate all of our rights, which again was impossible to do, would be construed as meaning that only those that were enumerated were meant to be protected. To address that problem, therefore, the Ninth Amendment was written, which reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Over the years, unfortunately, that amendment has been misunderstood  and largely ignored; but it was meant to make clear that the people “retained” a vast number of rights beyond those expressly enumerated in the document.

Thus, the rights expressly enumerated in the Constitution may be “parsimonious,” but understood in light of the larger theory of the document, they are not. Neither, moreover, are they “frozen in amber,” because the courts are called on regularly to interpret and apply them in the varying factual contexts that surround the cases or controversies that are brought before them. Thus, the right to freedom of speech has been read to entail the right to desecrate the flag, and the right to liberty has been read to entail the right to engage in sexual practices that others may dislike. Judges may sometimes fail to draw the proper inferences, of course, or draw inferences not entailed. But that says nothing about the Constitution itself.

The idea, then, that our Constitution is terse and old and guarantees relatively few rights—a point Liptak draws from the authors of the article and the people he interviews—does not explain the decline in the document’s heuristic power abroad. Nor does “the commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century” explain its fall from favor. Rather, it’s the kind of rights our Constitution protects, and its strategy for protecting them, that distinguishes it from the constitutional trends of recent years. First, as Liptak notes, “we are an outlier in prohibiting government establishment of religion,” and we recognize the right to a speedy and public trial and the right to keep and bear arms. But second, and far more fundamentally, our Constitution is out of step in its failure to protect “entitlements” to governmentally “guaranteed” goods and services like education, housing, health care, and “periodic holidays with pay” (Article 24 of the UN Universal Declaration of Human Rights). And right there, of course, is the great divide, and the heart of the matter.

The modern view, which we too have followed, at least statutorily if not constitutionally, is to recognize all manner of “entitlements” of a kind that can be provided only through massive governmental institutions that engage in material and regulatory redistribution. We are constitutionally out of step in that, to be sure. Countries like Greece, Italy, Spain, and Portugal are far ahead of us.

Time Running Out in Libya?

Even defenders of broad presidential prerogatives are starting to conclude that Obama’s war in Libya violates the original legal justification for it offered by the Office of Legal Counsel (OLC) in the Department of Justice.

Briefly put, the OLC said the Libyan war was not a war because the operation would be limited as to means, objectives, and duration. Thus, the OLC argued, neither the Constitution nor the War Powers Resolution constrained the president’s prerogatives.

The objective has changed from protecting civilians to regime change. The war itself has gone on now for as long as the unauthorized war in Kosovo in 1999. Jack Goldsmith concludes: “as the days drag on, and as our deep involvement persists, it becomes harder and harder to represent that this mission is limited in nature, duration, and scope.”

Presidents Should Obey the Law

In Star Wars III: Revenge of the Sith, when Chancellor Palpatine transforms the republic into an empire, Senator Amidala remarks:

So this is how liberty dies … with thunderous applause.

But it can also happen in silent acquiescence. For decades now, successive Congresses have evaded their responsibility to make decisions about the deployment of U.S. armed forces abroad. I write about the latest instance of this, in Libya, in today’s Britannica column:

Presidents have an obligation to obey the Constitution and the law. But one of the ways that separation of powers works is that each branch of government is supposed to jealously guard its prerogatives from usurpation by the other branches. Too often Congress ducks that responsibility, preferring to let presidents make decisions, make law, and make war without the involvement of Congress. As Arthur M. Schlesinger, Jr., explained in his book The Imperial Presidency, the expansion of presidential war-making power has been “as much a matter of congressional abdication as of presidential usurpation.”

The president is derelict in his duty to obey the Constitution and the War Powers Resolution. And Congress is derelict in its duty to assert its constitutional authority. And I’m still wondering what’s happened to the antiwar movement, which ought to be loudly protesting not just the continuing wars in Iraq and Afghanistan but the newborn war in Libya.

As George Will said last week, “even if you think the War Powers Resolution is an unwise law—it is a law.” And a former law professor who is now the president of the United States should obey the law. Will expanded on that point in his Sunday column, titled “Obama’s Illegal War,” in the old-fashioned print edition of the Washington Post.

Full Britannica column here.