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.