Toward a more democratic congress?

Boston University Law Review

Volumn 89, Issue 2, 2009, Pages 629-640

  Fleming, James E ^a  

^a BOSTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67649559524     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (70)

1. 1 Sotirios Barber, Constitutional Failure: Ultimately Attitudinal, in THE LIMITS OF CONSTITUTIONAL DEMOCRACY (Stephen Macedo and Jeffrey Tulis eds., forthcoming) (on file with author).
2. 2 BRUCE ACKERMAN, THE FAILURE of the FOUNDING FATHERS: JEFFERSON, MARSHALL, and the RISE of PRESIDENTIAL DEMOCRACY (2005).
3. 3 RONALD DWORKIN is DVEMOCRACY POSSIBLE HERE PRINCIPLES for a NEW POLITICAL DEBATE (2006).
4. 4 ALAN WOLFE, DOES AMERICAN DEMOCRACY STILL WORK? (2006).
5. 5 THOMAS E. MANN and NORMAN J. ORNSTEIN, THE BROKEN BRANCH: HOW CONGRESS IS FAILING AMERICA AND HOW to GET IT BACK on TRACK (2006).
6. 6 SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE the CONSTITUTION GOES WRONG (and HOW WE the PEOPLE CAN CORRECT IT) (2006).
7. 7 JOHN W. DEAN, BROKEN GOVERNMENT: HOW REPUBLICAN RULE DESTROYED the LEGISLATIVE, EXECUTIVE, AND JUDICIAL BRANCHES (2007).
8. 8 LARRY J. SABOTO, A MORE PERFECT CONSTITUTION: 23 PROPOSALS to REVITALIZE OUR CONSTITUTION AND MAKE AMERICA a FAIRER COUNTRY (2007).
9. 9 ROBERT KUTTNER, THE SQUANDERING of AMERICA: HOW the FAILURE of OUR POLITICS UNDERMINES OUR PROSPERITY (2007).
10. 10 SHELDON S. WOLIN, DEMOCRACY INCORPORATED: MANAGED DEMOCRACY AND the SPECTER of INVERTED TOTALITARIANISM (2008).
11. 11 MARK E. BRANDON, FREE in the WORLD: AMERICAN SLAVERY AND CONSTITUTIONAL FAILURE (1998).
12. 12 SOTIRIOS A. BARBER, ON WHAT the CONSTITUTION MEANS (1984);
13. WILLIAM F. HARRIS II, THE I NTERPRETABLE CONSTITUTION (1993).
14. 13 See, e.g., DWORKIN, supra note 3, at 52-55; JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE CASE of AUTONOMY 226 (2006).
15. 14 See WOLFE, supra note 4, at 22.
16. 15 See MANN and ORNSTEIN, supra note 5, at 6-11.
17. 16 Of course, it could be the case that these types of failure, though not themselves constitutional failure, are ultimately attributable to the Constitution in the sense that they are made more likely by our constitutional design. This seems to be the suggestion of Sotirios Barber's critique of James Madison's (and our Constitution's) eschewal of the Aristotelian tradition of "supplying the defect of better motives" by inculcating moral and civic virtues in favor of a strategy of private incentives and of letting ambition counteract ambition. Barber, supra note 1 (manuscript at 6-9).
18. 17 LEVINSON, supra note 6.
19. 18 Id at 22-24.
20. 19 Id at 167-80.
21. 20 Levinson told me in an email that he had proposed to Oxford University Press the title of Our Broken Constitution, but they declined because they had already used "broken" in the title of the Mann and Ornstein book, The Broken Branch: How Congress Is Failing America and How to Get It Back on Track. See generally MANN and ORNSTEIN, supra note 5 (explaining the institutional decline of Congress and the increase in partisan polarization within the branch). For what it is worth, I think it is a good thing that Oxford did not let Levinson use that title, because it would not have fit his book as well as the title they agreed upon.
22. 21 LEVINSON, supra note 6, at 94.
23. 22 I say that this analysis could have been written at any time during the twentieth century because I recognize that some of the features of our practice that he criticizes, like policy-based presidential vetoes and filibusters in the Senate, developed over time.
24. 23 531 U. S. 98, 110 (2000).
25. 24 Richard L. Berke, Bush Prevails: By Single Vote, Justices End Recount, Blocking Gore After 5-Week Struggle, N. Y. TIMES, Dec. 13, 2000, at Al.
26. 25 See LEVINSON, supra note 6, at 81-97.
27. 26 Id. at 162-63.
28. 27 Id. at 181.
29. 28 See WOLFE, supra note 4.
30. 29 See supra text accompanying notes 22-27.
31. 30 LEVINSON, supra note 6, at 25-27, 49-62.
32. 31 Id. at 29-38.
33. 32 See David M. Herszenhorn, Bush Signs Bill, N. Y. TIMES, Oct. 4, 2008, at Al.
34. 33 Levinson mentions a resolution to abolish the Senate. See LEVINSON, supra note 6, at 162. He is also deeply critical of "our illegitimate Senate" and the assumption that bicameralism is the natural division of legislatures despite the fact that "two-thirds of the countries around the world have only one-house legislatures." Id. at 30-31, 49-62.
35. 34 SABATO, supra note 8, at 23-28; see Sanford Levinson, Still Complacent After All These Years: Some Rumination on the Continuing Need for a "New Political Science " (Not to Mention a New Way of Teaching Law Students About What Is Truly Most Important About the Constitution), 89 B. U. L. REV. 409, 418-19 (2009).
36. 35 LEVINSON, supra note 6, at 38-49.
37. 36 Id. at 49-62.
38. 37 Levinson, supra note 34, at 409.
39. 38 LEVINSON, supra note 6, at 58 (referring to articles by Yale law professor William N. Eskridge, Jr., The One Senator, One Vote Clauses, in CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES 35, 35-39 (William N. Eskridge, Jr. and Sanford Levinson eds., 1998), and Vanderbilt law professor Suzanna Sherry, Our Unconstitutional Senate, in CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL TRAGEDIES, supra, at 95, 95-97).
40. 39 377 U. S. 533, 561-68 (1964).
41. 40 See generally David R. Mayhew, Is Congress "the Broken Branch "?, 89 B. U. L. REV. 357 (2009) (arguing that there is no compelling case for revising the Constitution)
42. Kenneth A. Shepsle, Dysfunctional Congress?, 89 B. U. L. REV. 371 (2009) (responding to Levinson and arguing that our unhappiness with Congress stems from an unhappiness with institutions generally);
43. Barbara Sinclair, Question: What's Wrong with Congress? Answer: It's a Democratic Legislature, 89 B. U. L. REV. 387 (2009) (arguing that Congress may appear dysfunctional and ineffective because what we ask it to do is "really, really hard").
44. 41 James E. Fleming, Successful Failures of the American Constitution, in THE LIMITS of CONSTITUTIONAL DEMOCRACY, supra note 1 (manuscript at 19-22, on file with author).
45. 42 THE FEDERALIST NO. 10, at 56 (James Madison) (Jacob E. Cooke ed., 1961).
46. 43 It is not for nothing that the Senate conceives itself as the world's greatest deliberative body - and sometimes it even acts like it!
47. 44 Consider the presidential candidates from the last ten presidential elections: nine had been governors (George W. Bush (2004 and 2000), Bill Clinton (1996 and 1992), Michael Dukakis (1988), Ronald Reagan (1984 and 1980), and Jimmy Carter (1980 and 1976));
48. eight had been senators (Barack Obama (2008), John McCain (2008), John Kerry (2004), Al Gore (2000, more recently Vice President), Bob Dole (1996), Walter Mondale (1984, more recently Vice President), Richard Nixon (1972, more recently Vice President), and George McGovern (1972));
49. only one had been in the House of Representatives (Gerald Ford (1976, more recently Vice President));
50. and two had never been elected to national office before becoming the Vice President (George H. W. Bush (1988 and 1992)).
51. 45 DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 61-73 (1974) ("The third activity congressmen engage in may be called position taking, defined here as the public enunciation of a judgmental statement on anything likely to be of interest to political actors.").
52. 46 SABATO, supra note 8, at 23-32; see LEVINSON, supra note 6, at 8-9.
53. 47 Bruce Ackerman and Gerard Magliocca, 3The Great Repudiator?, AM. PROSPECT, NOV. 5, 2008, http://www.prospect.org/ cs/articles?article=the-great-repudiator.
54. 48 ANDREW RUDALEVIGE, THE NEW IMPERIAL PRESIDENCY: RENEWING PRESIDENTIAL POWER AFTER WATERGATE 5-7 (2005).
55. 49 Mark Tushnet, Some Notes on Congressional Capacity to Interpret the Constitution, 89 B. U. L. REV. 499, 508 (2009).
56. 50 Of course, we also might distinguish between institutional design writ large - like that in Levinson's and Sabato's books - and institutional design writ small - as in Adrian Vermeule's book. Compare LEVTNSON, supra note 6, at 168-80, and SABATO, supra note 8, at 221-32, with ADRIAN VERMEULE, MECHANISMS of DEMOCRACY: INSTITUTIONAL DESIGN WRIT SMALL 2 (2007) ("In established constitutional polities, I argue, law can and should - and to some extent already does - provide mechanisms of democracy: a repertoire of smallscale institutional devices and innovations that promote democratic values against the background of standard large-scale institutions.").
57. 51 U. S. CONST, art. V (requiring a vote of two thirds of both houses of Congress to propose a constitutional amendment and support from three quarters of the states to ratify it).
58. 52 Id. at amend. XXII, § 1.
59. 53 AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 433-38 (2005).
60. 54 531 U. S. 98, 110 (2000).
61. 55 For a discussion of proposals to abolish the Electoral College in the aftermath of the 2000 presidential election, see David Stout, The 43rd President: The Electoral College, N. Y. TIMES, Dec. 19, 2000, at A31.
62. 56 For fuller analysis of the circumstances in which the Constitution has been amended, see, for example, AMAR, supra note 53, at 313-463.
63. 57 U. S. CONST, amend. XVII (creating the direct election of senators and ratified in the context of the progressive movement).
64. 58 U. S. CONST, amend. XIX (giving women the right to vote and ratified in the context of the women's suffrage movement).
65. 59 U. S. CONST, amend. XXIV, § 1 (abolishing the poll tax and ratified in the context of the civil rights movement).
66. 60 U. S. CONST, amend. XXVI, § 1 (giving eighteen-year-olds the right to vote and ratified in the context of the Vietnam War, which in effect says "if you're old enough to die for your country in the Vietnam War, you're old enough to vote").
67. 61 This is the kind of argument I would expect my co-panelist Adrian Vermeule to make. See Adrian Vermeule, Self-Defeating Proposals: Ackerman on Emergency Powers, 75 FORDHAM L. REV. 631, 631 (2006) ("Proposals defeat themselves when the motives, beliefs, or political opportunities ascribed to relevant actors by the theorist's diagnosis are incompatible with the solution that the theorist offers.").
68. 62 LEVINSON, supra note 6, at 167-80.
69. 63 Id. at 160.
70. 64 Barber, supra note 1 (manuscript at 2).