Was It The Constitution That Failed Us?

The so-called Critical School of Constitutional Theory from several decades ago (perhaps best summed up by then-Georgetown Law Professor Mark Tushnet over the years (now at Harvard and part of Jack Balkin’s blog)) is enjoying a revival. Almost entirely because of the Warlord, his regime and the Judiciary and Congress’ failure to assert themselves as co-equal branches of government.

Over at Jack Balkin’s site, a number of efforts to re-launch and even re-make many of the previous Crit School observations but now with contemporary urgency (and frankly legitimacy, one must confess) are under way. We have enjoyed the analysis over there greatly and during the Dark Years the site was an invaluable resource. Regarding their new discussion, Sandy Levinson put it thusly:

Discussion sites on constitutional change

Sandy Levinson

University of Virginia political science professor Larry Sabato is about to publish a very interesting book, A More Perfect Constitution, that both critiques the Constitution and, more than my book, offers explicit suggestions (23 of them) for improvment, including the call for a new constituitonal convention. His book is the trigger for a major event in Washington on Friday, October 18 (in which I will be participating on a panel on a new convention). He suggests, as do I, that one way to begin the long overdue national conversation is through dedicated web sites, including his own amoreperfectconstitution.com. I have also created a blog site on my University of Texas page, and I welcome anyone who wishes to particpate in some of the discussions that I have been trying to initiate.

Larry Sabato proposes 23 specific changes to the Constitution in yes, his new book. Sabato, like Louis Fisher in an earlier generation, as noted by Sandy Levinson is a political scientist rather than a legal scholar, and approaches the subject from the external rather than internal (legal) point of view. Here is his list of 23 specific changes to the Constitution.

What appears to be lacking from Sabato’s work are any theories of what citizenship means in 2007. His recommendations are about process and functioning. Much like Larry Wilkerson’s claims that if we re-wrote the 1947 National Security Act, it would *compel* Bush to share information with the State Department and so forth. These are people from and for process-oriented inputs and outputs.

The Stiftung’s typo-laden response on Jack Balkin’s site (we hate the fact we had to create a blogger account to log and lost a post and had to re-do it from memory) can be summed up thusly: Sabato almost for sure and perhaps Sandy Levinson, just perhaps, may omit accounting for the civic republican tradition and the original “liberal” theories that underlay the foundation. Absent a general theory of citizenship, a critique and solutions like Sabato’s calling for a new national convention, especially, are reckless and foolhardy. Sabato has no clue what Pandora’s box he would open, or that he and everything he hold dear would be the Whom to some one else’s Who (most likely Christian Socialist Authoritarian of one sort or another).

To paraphrase Mark Tushnet from another era, “Sabato’s mechanistic and process-oriented critique is impossible because no available approach to constitutional law can effectively compel the Congress and the Judiciary to assert themselves as co-equal branches of government. We are left with a choice of dictatorships; sometimes the majority will be the dictator, sometimes the minority” (a paraphrase of Tushnet).

Judge Learned Hand famously said with Stiftung inserts: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court [no new list of reforms from Sabato] can even do much to help it. While it lies there it needs no constitution, no law, no court [no Sabato] to save it.”

Absent a general theory of citizenship, or getting a clear bead on theirs if it is already presented, we are skeptical in the extreme about the utility of unwinding the Constitution as the solution to Bushism. Secondly, we are not sure what “constitutional theory” would be employed in justifying and creating a New Constitution. This latter point is more important for the others on Jack Balkin’s blog as constitutional theory is and would be an internal constraint and operating system for the new government.

So what do you think, Dear Reader? Did the Constitution fail us? Or did we fail it? Can new process really be the answer? Or is Sabato’s book just another sign of the technical decadence we’ve talked about here before? We haven’t spent alot of time here on constitutional theory and not sure our brave band is interested in it, particularly.

Feel free to reply here or over there.


  1. Comment says

    Just think about how much information could be gleaned from the Blackberries of politicians – that information, stored on servers, may somehow find its way into the hands of politicos.

  2. Comment says

    They wouldn’t take that informaton, would they? That’s just not the decent thing to do.

  3. DrLeoStrauss says

    re privacy, telcos and emai

    This item in the NYTimes indicates that some telephone companies will begin to monitor calls and send ads based on the calls.http://tinyurl.com/27qole

    This is essentially the Google gmail strategy, as noted in the story. More interesting — and perhaps startling for Blackberry users — are rumors that Research in Motion (RIM) will start doing the same. Just think about all that data RIM already has on all the Blackberry users sitting on its servers.

    And what the regime, rogue “IC” contractors, or others can get with one bogus NSL request or subpoena.

  4. Anon says

    Meant they have a veneration for the military brass – not from the brass. Its connected to their c-hawkery.

  5. Anon says

    This is the first time we actually saw the actual MoveOn anti-Petraeus ad – It’s actually a pretty clever political whack and is not over the top in venom – The GOP has become what Alexander Hamilton would call “womanish” in its veneration from brass and authority and its willingness to put up with lies.

  6. Comment says

    What is so absurd is that not only is a mild jab delivered mildly, but the same weak ‘reporters’ who describe that as an attack do not describe real attacks on Hillary as an attack. Take for example the right wing swear againt Hillary that she was somehow involved in Vince Foster’s death. Even after Ken Starr (no friend of HRC) dispensed with that looney tale, you have people like Chris Matthews recently talking it up – knowingly aiding an implication g that Hillary may be a murderer. That’s an attack, as well as a slander – but Tweety types prefer to call Mrs. Edwards light observational jabs as attacks. It’s weird.

  7. Comment says

    Way back in the cspan archives they have one of these long episodes where they just follow Tweety around on some book tour and around his DC life – There was on hilarious scene when Tweety and wife pray and hope loudly to his group of assembled friends and hangers on that his book do better in sales than Bill O’Reilly. It was probably around 2000 or 01 if memory serves. BillO was just emerging as Cable Colossas. Tweety’s frightful appeal – which was made without humor or irony – was probably driven by resentment that his political ‘expertise,’ which is not as great as he thinks, was losing out to BillOs self-styled street wisdoom. But deep down Tweety probably knows that Bill has a high level of raw intelligence than him. He does – it’s obvious. No matter hownorant he is about certain things,he’s very smart, and very clever.

  8. Comment says

    Just a note on Tweety — we tuned in midway tonight and we saw a screen message saying that Mrs. Edwards attacked Mrs. Clinton – or something to that affect. Immediately we knew that probably wrong and indeed it was – it turned out that Edwards very mildly and very politely pointed out that HRC’s health plan followed her husband’s or whatever.
    This seems small bore – but these endless small lies and falsehoods are the most insideous thing about his show. Whether it’s misquoting Joe Wilson (which led to actions that pleased us) or whatever, Tweety puts so many small falsehoods into the meme-sphere that its amazing when you fact check and walk back the cat on some false stories and rumors, they lead back to his show.
    We are no fans of Gee Dubs and his “disgusting” Presidency, but there are propably a host of bad things that we believe about him that might not be true but got started somehwhere in Tweety land.
    Most of his small stories or his nasty comments (calling Crocker a “cookie pusher” – wtf is cookie pusher anyway? what the hell did Tweety mean by that?) are meaningless in isolation, but the fog of falsehood is made of many many falsehoods that he just utters.
    Yet – he is so wealthy and successfull – One wonders why we as a society reward that?

  9. Comment says

    So many of his proposals would open their own Pandora’s Boxes too – aside from the convention. There is a cryptic imperial-elitism hidding in the surface populism of some his proposals – That is to say, they would work in practice differently than they would be marketed. Sort of like the way NAFTA was sold – even if you liked NAFTA, it was sold on falsehoods.

  10. sglover says

    Sabato has no clue what Pandora’s box he would open, or that he and everything he hold dear would be the Whom to some one else’s Who (most likely Christian Socialist Authoritarian of one sort or another).

    Precisely. I’m no lawyer, but over the years I’ve mused about a Constitutional Convention, because I think it’s clear that the political structure the document set up is severely broken. Every time the daydreaming is stopped in its tracks by two unavoidable questions: Whom would one trust to write the new document? And who’s most likely to have real pull in the session? I suspect it won’t be scientists and social workers.

    But if we are going to speculate, a parliamentary system is the very *first* reform I’d suggest. I’d also supplement the Bill of Rights with some real economic rights — shelter, nutrition, education, health care, employment. So call me a socialist….

  11. DrLeoStrauss says

    Lloyd Cutler, the Counsel to the President (Carter) when that position still had meaning (and also the Cutler of Wilmer Cutler) , had a far more elegant solution to much of the frustrations being voiced now back in the day — a parliamentary system. Bush would have fallen long ago, etc. Haven’t read Sabato’s book either, just tried to glean his meaning from his website.

  12. Comment says

    We have not read Sabato’s book, but it would not surprise us if it were process oriented – That seems to be an extension of his his personality. The Founder’s had a variety of personalities and you can see that reflected in the debates at the time – But they did share a certian sense of Citizenship, though they were quick to say that their opponents did not. Anyway – as you note, the heart of libety is in critical condition. It is stressed.

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