1. [The equal representation of the states in the Senate]...
2. [The Electoral College]...
3. Is it appropriate that a president can frustrate the will of a majority of both houses of Congress by vetoing legislation with which he disagrees on purely political grounds?...
4. Is it a desirable feature of the Constitution that the impeachment clause enables us to rid ourselves of a criminal president, but leaves us at the tender mercies of an incompetent one until the conclusion of his or her fixed term of office?...
5. Does it make sense that an incumbent defeated in a national election maintains the presidency for a full ten weeks beyond election day, fully capable of making policy decisions that may drastically effect [sic] the future of the United States?...
6. Do you really want justices on the Supreme Court to serve up to four decades and, among other things, to be able to time their resignations to mesh with their own political preferences?...
7. Do you support the ability of thirteen legislative houses in as many states to block constitutional amendments desired by the overwhelming majority of Americans and, potentially, by eighty-six out of the ninety-nine legislative houses in the American states?
This is the lead piece in a symposium in the Harvard Law & Policy Review. There are responses from Frank I. Michelman, Mark Tushnet, Adrian Vermeule, and Robin West.
Posts
34 comments:
So he likes a pure democracy and dislikes the republican aspects of our government. Nice. Democracy did wonders for black folks in the South in early 20th c.
My goodness is this a stupid man. The only question is whether he is just plain dumb or acting that way to make some juvenile point.
Take point 3 questioning whether is appropriate for a president to veto something for purely political reasons. Pray tell, what other reasons are there? He complains that presidents have vetoed 2,501 laws "many of great import."
Just because a law is of great import in theory doesn't mean it's badly written or would have been declared unconstitutional had they not been vetoed.
That aside, why does he not ask whether it is appropriate for either house of congress or for any senator or congress person to oppose OR SUPPORT a law for purely political reasons. He doesn't ask because even he is so stupid as to not know that ALL laws are political (even if helpful.)(It's also possible he is that stupid, but simply didn't get around to making such an asinine point.)
This isn't to say the constitution is perfect (I would actually vote to go back to states appointing senators; I think the distinction between states entities having a voice and the people of states having a voice is important. It would also fix electioning corruption issues of senators without destroying first ammendment rights.)
By his own admission Levinson doesn't understand the rationale of the constitution. Ironic since this isn't a mystery except to someone who chooses it to be. Worse, he has that naive hubris that we are different than those bastards and we can handle democracy.
Were the US to somehow adopt a "modern" democracy (a euphemism for popular democracy) I'm quite sure the Levinson's of the world would be horrified at what "the people" did with such power. (For one, they'd probably first rid themselves of the Levinson's of the world or at least ignore them.)
Ultimately, Levinson falls into the very trap that Madison forsaw--the tendency of people to believe life would be perfect were they in charge.
The brilliance of the Constitution is that it makes it very difficult for politicians to bring about massive change. They did not trust politicians or bureaucrats then, and neither should we today.
The only change I would agree with is that Supreme Court appointment should not be for life. When this provision was put in, people rarely reached 60. Now we have judges working well into their eighties. One term of 16 years should be the limit for judges on all our courts.
I don't see any of those things as being problematic. I strongly support the federal system, and that includes the weighting of votes in the Senate and the Electoral College. I think it's entirely appropriate that the President can frustrate the will of a majority of both houses of Congress for any reason he likes. Number four doesn't even merit a response. Yes, it makes perfect sense for a reasonable handover period, expecially in light of the sort of litigation we are seeing in close elections. Yes, I fully support the ability of thirteen legislative houses in as many states to block Constitutional amendments. These positions are fully defendable on both normative and Constitutional grounds.
The only point where I even vaguely agree with him is on the question of life tenure for judges, but I imagine Levinson's alternative - to judge by the general tenor of his suggestions - would be worse than the present system. I would, however, consider supporting a single, non-renewable term of somewhere between 12 and 24 years.
If the Constitution is America's secular religion, as one scholar put it (M. Horwitz, The Meaning of the Bork Nomination in American Constitutional History, 50 U. Pitt. L. Rev. 655, 663) (1989), Levinson is a heretic - and I suggest that we don't need a second coming so much as we need a spanish inquisition. Levinson's basic beef is that he despises the fact that this country is a federal republic rather than a direct democracy, and I find that position sufficiently reprehensible that I almost want to buy a boat just so that I would have a yardarm to hang him from. I suppose we should at least be glad that Levinson is barred from any kind of public office through which he might advance these ideas.
"... fully capable of making policy decisions that may drastically effect the future of the United States?"
I certainly hope that even a lame-duck president's policy decisions will "effect" the future of the U.S. The worst decision would be one that precludes a future U.S. Sheesh, this guy's a lawprof?
Incidentally, I agree with Joe's point about rescinding -- or at least, refining -- the 17th Amendment, and wrote a proposed amendment to do it some time ago. My pitch is that while the 17th Amendment was calamitous for the balance of power in the federal system, the pre-17th Amendment Senate did suffer from salient defects, and so it does not suffice to simply rescind the 17th Amendment. This amendment would correct both the flaws of the 17th Amendment and the original Article I Senate.
One more point. I'm absolutely floored by footnote 18. Under no interpretation does the US Constitution allow congress to convene a constitutional convention as he suggests. Why is this guy taken seriously by anyone?
Simon,
I like your proposed ammendment. It's simple, elegant and resolves issues with simply repealing the 17th ammendment.
Joe said...
"I'm absolutely floored by footnote 18. Under no interpretation does the US Constitution allow congress to convene a constitutional convention as he suggests."
Article V's text says:
"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided ... that no state, without its consent, shall be deprived of its equal suffrage in the Senate"
I would construe that text to contain four rules:
1. Congress may propose amendments to the Constitution, with the concurrence of two thirds of the members of both houses. Such amendments must be ratified by the legislatures of three quarters of the states.
2. Congress must organize a convention to propose amendments when the legislatures of two thirds of the states certify their desire for one. The amendments proposed by that concention must be ratified by conventions in three quarters of the states.
3. Any amendment changing the apportionment of votes in the Senate, whether it comes from Congress or Convention, must be unanimously approved by the states.
4. If a Convention is called, it is formally limited to proposing amendments to the Constitution. It cannot liquidate the Constitution and start again.
There are a couple of ambiguities in here, and a little-noticed but clever check and balance (the state legislatures can initiate the convention, but any amendments that come out of that convention bypass the state legislatures for approval), but I don't see how Levinson can possibly construe that language to suggest an autonomous Congressional power to call a convention.
By the way - is no one else bothered that "the Harvard Law & Policy Review" (seemingly the ACS' embarrassingly-transparent attempt at one-upmanship on the Federalist Society's Harvard Journal of Law & Public Policy) could not find a single dissenting voice for its "symposium"? The "insightful critiques" seem more aimed at bolstering Levinson's thesis than taking it apart.
OTOH, I suppose there is a reasonable argument that Levinson's proposition is so atrociously meretricious that one is discouraged from offering a critical response for fear of lending it the dignity of seeming worth rebuttal. None-the-less, I would have thought they could have found someone, but that would defeat the ACS' goal of having Levinson's central thesis (that the Constitution is defective) go unrebutted.
A lovely thought, term limits for anyone elected or appointed, say 10 years?
This is the tyoical utopians whine in that the checks and balances restrain Government power when their annointed politico's assume power in the Congress but not the executive. Th is is nothing new; we heard similar carping about the electoral system after Gore lost. "We didn't get the outcome we wanted so we need to change the system until we win. When we win, that will indicate that there's no problem anymore."
Soreloserman redux. It shows a contempt for The Constitution as written.
Given that much of the US Constitution seems to be concerned with restricting the government's ability to act - a policy that seems to have held up pretty well over time - I don't see a problem with these issues.
I'm pretty sure the first person I ever heard say "If it ain't broke, don't fix it" wasn't even a high school graduate, much less college. Evidently that rule is beyond the grasp of some of our lawprofs.
Democracy is overrated. The best parts of our constitution are the undemocratic parts: the Bill of Rights and the checks and balances that frustrate democratic impulses. It would be much better to live in a liberal republican dictatorship than in a pure democracy.
Why doesn't Sanford Levinson simply advocate a parliamentary system? That's what most of his complaints lead to.
why all the invective? the professor suggested topics of discussion re: the constitution.
refute them, fine. but don't act like such a bunch of ninnies.
Goesh: Re. elected officials term limits, no. There's already a way to get them out of office if the populace tire of them - stop re-electing them.
Cedar: Which treaty, exactly, made such declarations of war illegal?
Most of your argument seems, given the lack of expressed argumentation behind your points, to boil down to "other countries don't do it, so it's a mistake".
(And what's this about the Constitution and refilling a nuclear-attack-emptied house?
Article 1, Section 2 already says "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." - What's wrong with that, and what change is necessary and useful to improve it?)
The overall reasoning is not exactly convincing, one might say. I don't know that I "venerate" the Constitution, but I most certainly do oppose tinkering with it in the name of "updating".
We've managed a number of amendments over the years, and I like that it's difficult to tinker with; a strength, not a weakness. Prevents the worst of Faddish changes from occurring; even with the difficulty of amendment, we still got Prohibition. I don't think things would be better if it was easier to make such changes.
Let me strongly implore the commentariat to just ignore Cedarford's comments.
Marghlar,
That would be a criticism of my fourth inferred rule, not the second. You're talking about the power (and tendancy) of the convention to exceed its mandate, not the authority of Congress to call it. I think Joe's point (and I would echo it) is that Article V does not vest independent power to call a Constitutional convention in Congress, and so any amendment such a Convention reported out would be invalid, if adopted under Article V. Obviously if the Convention, once called, decided to go down the 1788 model (as Levinson clearly desires), and abandons Article V entirely, then sure, you're right.
On the normative position, I am very skeptical that anything that we could do now could even come close to matching, nevermind improving on, the current system. The results can predictably be assumed to be ghastly, as indeed most modern constitutions are, and I think there would be blood on the carpet out of the partisan warfare that would erupt as each side tried to make it favor themselves. A constitutional convention would be nothing short of a political disaster, and a likely prelude to disunification.
Somehow I feel that Cedarford's "updated" constitution would deny citizenship to Jews and provide mandatory confinement for homosexuals and other "deviants". No thanks, O Cedar. I'll remain happily in the 18th century.
Lawprof Sanford Levinson refutes himself: "My own desire for power is the very reason you shouldn't listen to my complaints."
Cedar: Which treaty, exactly, made such declarations of war illegal?
the UN charter, to which we are a signatory. the only "legal" wars are those taken in self defense or sanctioned by the UN security council.
note, the UN charter does not make "declarations of war" illegal.
it prohibits "declarations of war" 1) not taken in self defense or 2)not sanctioned by the UN security council.
After 9/11, Constitutional scholars said the specific language blocked us from declaring war on a NGO (Al Qaeda). And even if THAT was fixed by a long Amending process, the UN treaty and several others that followed we signed committed us to "Not say the Magic Words (Declare War)"!
needless to say, this is all wrong.
It's the fundamental mistake of far too many modern "liberals". The preservation of liberty on the long term requires both an institutional conservativism and a popular reverence for those institutions that can resist the democratic passions of the day. Otherwise, you wind up with the Reichstag giving the Chancellor dictatorial powers followed by an authorizing plebecite. Or, at the very least, a constitutional amendment against flag-burning, as a European-style process of amendment (two majority votes by two consecutive parliaments) would have given us long ago.
Mr. Levinson and his kind, as a rule, concentrate far, far too much on "democracy" and "progress" to deserve the name liberal, which rightly belongs to those who would place liberty before those.
#1 and #2 are features that help keep the three policy-making organs of government out of alignment, which is the desirable alignment. "Pulling together is the aim of despotism and tyranny. Free men pull in all kinds of directions." (Thank you, Terry Pratchett, for that wonderful phrasing.)
#3 is merely giving action to #2.
#4 misunderstands constitutional law. The given grounds in the Constitution, as a practical matter, do not stop Congress from using the impeachment power to remove any president they choose to remove. All it does is build in a cultural resistance to remove them for other reasons. And it is desirable to make the culturally-acceptable degree of extremity for removing on grounds of incompetence larger than the extremety needed for removal on grounds of criminality, given that the burden of proof of incompetence is usually considered much less than for criminality.
#5 actually points out a possible defect. But, we've amended the period shorter once; if it were really felt the current time is too long, we could amend it again. When's the last time even a simple majority of either House signed on to such an amendment?
#6 is perhaps the best of the objections. A fixed 15-year term for all federal judicial appointments strikes me as potentially superior.
On #7, my answer is yes, given the fact that a rejection is not final. Any of those 13 can reverse their decision later and effect the amendment (as has been seen my multiple votes in amendments in the past).
The Exalted said...
"the UN charter, to which we are a signatory. the only "legal" wars are those taken in self defense or sanctioned by the UN security council."
As a treaty, it would be repudiated by a formal declaration of war by Congress.
A treaty may bind the conduct of the executive branch, but it cannot restrain Congress, because an act of Congress, by definition, cannot violate a treaty, because all ratified treaties are born coequal to, not superior to, Federal law. "What happens when a treaty provision and an act of Congress conflict? The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant … [T]he treaty commitments of the United States do not diminish Congress’ constitutional powers[,] … [even if] legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it.” Killian & Costello, THE CONSTITUTION OF THE UNITED STATES: ANALYSIS AND INTERPRETATION (2002 ed.), pp.499-500; cf. Foster & Elam v. Neilson, 27 U.S. 253, 315 (1829) ("Our Constitution declares a treaty to be the law of the land ... [and] [i]t is consequently to be regarded in courts of justice as equivalent to an act of the Legislature whenever it operates of itself, without the aid of any legislative provision") (emphasis added).
Nor can a treaty be Constitutionally valid if it purports to strip Congress of the later power of repeal. Reid v. Covert, 354 U.S. 1 (1957), stands for the common-sense proposition that, just as a law repugnant to the Constitution is void, then so must a treaty made by the United States comply with the Constitution of the United States, or be void: "[t]here is nothing in [the supremacy clause's language] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution." Reid, supra, at 16. And if "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government," ibid. (emphasis added), then a foriori, no treaty can strip the Congress of power. A treaty that purported to be beyond repeal would violate Art. I §1 Cl. 1's grant to Congress of all legislative power within the competance of the United States, since by definition it would leave Congress with a residuum comprising less than all of the legislative power.
Hence: either Congress can unquestionably abrogate a treaty (including the United Nations charter), in part or in whole, or if the treaty claims that it cannot be abrogated, it is void, and thus lacks any force or relevance. Treaties are binding on the executive and the states, but merely advisory to Congress (and to the President when the latter acts pursuant to the presentment clause). Hence, a declaration of war by Congress cannot be illegal.
Cedarford raises interesting questions, even if I think he goes a bit too far with regards to the gays and the jews(or god forbid, gay jews)
One thing I never understood about originalists is that by any objective historical inquiry the 14th amendment was clearly ratified inviolation of Article V(at the least it is questionable whether it was, although I think an objective inquiry shows that it was ratified in an unconstiututional manner).
Basically, the 14th was ratified through extortion with ratification being the price of readmittance to the Union.
Therefore, I would think that any honest originalist should say that ALL cases such as Brown, Roe, Lawrence, Grutter, Bakke, Mapp, Gideon, Baker, Sims, Furman, Roper, etc... were decided wrong and should be overruled because the the 14th amendment is itself unconstitutional.
Now, one can say, "well, it may be unconstitutional, but it's part of the Constitution and regardless of how it was adopted we have to treat it as such", but that's a whole nother issue and if one is willing to be felxible on that issue then I say no reason why one wouldn't be flexible on other issues.
SarahWeddington said...
"One thing I never understood about originalists is that by any objective historical inquiry the 14th amendment was clearly ratified inviolation of Article V (at the least it is questionable whether it was, although I think an objective inquiry shows that it was ratified in an unconstiututional manner)."
I don't see how you can sustain that argument. I commented above that Article V contains four rules, although I have to confess that I missed the fifth rule, a corollary to the third: unaminity is not required, only concurrence of three quarters of the states. Because it does not re-apportion the Senate, as long as the Fourteenth Amendment was proposed by Congress (it was) and has been ratified by three quarters of the states (it has), it satisfies Article V and was thus ratified in a constitutional manner. It is of no moment that
Addenda (to Sarah) - if you mean it was invalid because the proposing Congress was short on membership, that was one of the ambiguities I had in mind in my 10:28 comment: whether the proposing Congress must obtain the concurrence of two-thirds of its total membership or two-thirds of those present and voting. As I explained in my discussion of why the FMA cannot be ratified, in the present-day, Maine and Massachusetts explicitly permit a majority vote of the members present and voting in each chamber of their legislatures to ratify a U.S. Constitutional amendment. While Article V does not explicitly so specify, the question has been squarely decided by the Supreme Court: "[t]he two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present-assuming the presence of a quorum-and not a vote of two-thirds of the entire membership, present and absent." National Prohibition Cases, 253 U.S. 350, 386 (1920) (citing Pacific Ry. Co. v. Kansas, 248 U.S. 276) (1919).
I see nothing in the Constitution that predicates the validity of an amendment on whether the legislature so ratifying was the victim of extortion. Certainly, Rhode Island was fairly clearly extorted into joining the Constitution during the original ratification, and few Founders seem to have objected.
The "readmission" requirements themselves were grounded in the power of the houses of Congress to be the judge of their own elections, returns, and qualifications. The Rhode Island Dorr's War precedent, which made whether a state government is valid a question for the policymaking branches of the Federal government, established that one of the ways such policy is expressed is through admission or non-admission of the congressmen elected under that government's auspices into Congress.
Clearly, the Congress can (given the "republican form of government" clause) require states to enact certain measures to guarantee the rights of their citizens, given the Founding-era meaning of "republican".
And finally, the Constitution is one big grey area when it comes to dealing with states that have purported to secede, have fought a war of rebellion against the Federal Government, and have been reconquered. There is lots of room for discretion by the policymaking branches of government before we reach into any original meaning to limit that discretion.
Given all that, I think it reasonable to say that not admitting the Senators and Representatives from those states until the 14th Amendment was ratified by them was not clearly unconstitutional by originalist standards, and the ratification of the amendment was clearly constitutional.
gd, you people are stupid.
if the united states issued a declaration of war in violation of the UN charter, then you think your saving grace is that that same declaration would, in your view, repudiate the UN charter?
of course we can get out of any treaty we want to, its a voluntary restraint caclulated to bring about a greater good.
right now, as a signatory to the UN charter, we are bound by its conventions. so piss off.
sorry cedarford, your understanding of the UN charter is remiss.
article 2(4) prohibits states from using force against one another in a manner inconsistent with the purposes of the united nations.
what is inconsistent with those purposes? any war undertaken 1) not in self defense or 2) not sanctioned by the security council.
to get more technical, article 39 empowers the security council to take measures under article 42. these measures can include authorizing coalitions or authorizing states to use force. article 51 authorizes individual or collective self-defense in the event of an armed attack.
clearly, a declaration of war could be a use of force legitimized by a security council resolution or as an act of self-defense.
TheExalted-
"we can get out of any treaty we want to, its a voluntary restraint caclulated to bring about a greater good[,] [but] right now, as a signatory to the UN charter, we are bound by its conventions."
This makes no sense. The executive branch is bound by treaties, but the executive cannot, by definition, declare war, under a higher authority than any treaty. Only Congress may declare war, and as you concede, since Congress can abrogate a treaty, the moment we decide not to be bound, we are no longer bound. So all realism, in what sense are we actually bound? It's like saying that the fluffy, plastic handcuffs you see in stores around valentine's day "bind" the person on whom they're used. It's an illusion, an artifice, a fantasy.
Slac,
I don't think that the electoral college is "arcane," I think it continues to be an extremely important part of the federal system, and attenuates what would otherwise be total dominance by the dozen largest states. Nor do I see the House and Senate rules as being the biggest problem facing the nation, and what I take to be the logical inference of your objection to the rules of Congress no being foreordained by the Constitution, viz. the Constitutionalization of the rules, is preposterously unwieldy.
Moreover, how is your complaint that Bolton can't be confirmed because of politics any different from Levinson's complaint that the President can "veto[] legislation with which he disagrees on purely political grounds"? The whole purpose of the separation of powers is to use politics as a shield against tyranny; that's why you find Madison warning, in Federalist 51, that "the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others ... Ambition must be made to counteract ambition[,] ... [and] the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other." (Emphasis added). Cf. Federalist 76 (Hamilton) (explicitly rejecting the criticisms of "those who have found fault with the [appointment] provision made," some of whom had "contend[ed] that the President ought solely to have been authorized to make the appointments under the federal government").
the UN charter, to which we are a signatory. the only "legal" wars are those taken in self defense or sanctioned by the UN security council.
First of all, the charter establishes no authority for deciding what is or isn't a "defensive war". Thus any nation may get around the charter -- as almost every signatory has -- by claiming that their war is either (a) not a war or (b) defensive.
Secondly, there exist many wars which are technically still in progress, such as the UN-authorized wars against Iraq and North Korea. New authorization is not, strictly speaking, required for waging wars against those nations.
Most importantly, under the Constitution the authority to decide the manner in which treaties bind the US lies with the federal government. As all three branches of the federal government have found that none of the wars we've engaged in since signing the UN treaty have violated the UN treaty, it is a fact that -- so far as the law's concerned -- we haven't violated the UN treaty.
Seven Machos said...
"Isn't the U.S. also prohibited from waging war by the Kellogg-Briand Pact?"
Yes, but with the same qualification as with the U.N. Charter vis-a-vis Congress.
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