Constitutional failure: Ultimately attitudinal

The Limits of Constitutional Democracy

Volumn , Issue , 2010, Pages 13-28

  Barber, Sotirios A ^a  

^a UNIVERSITY OF NOTRE DAME   (United States)

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EID: 84867078312     PISSN: None     EISSN: None     Source Type: Book    
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References (69)

1. Alan Wolfe, Does American Democracy Still Work? (New Haven: Yale University Press, 2006), 1-24.
2. Sanford Levinson, Our Undemocratic Constitution (New York: Oxford University Press, 2006), 49-62, 81-97.
3. Ronald Dworkin, Is Democracy Possible Here? (Princeton: Princeton University Press, 2006).
4. Sheldon Wolin, Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism (Princeton: Princeton University Press, 2008), 100.
5. Adrian Vermeule challenged this proposition in the Princeton conference of February 2007, at which I presented a draft of this paper. He claims constitutional failure does not presuppose a notion of constitutional success because discussants can agree only on what counts as constitutional failure, not success. Professor Vermeule and I disagree across the board. First, I would expect little disagreement with a test of constitutional success described at a high level of abstraction, such as "adequa[cy] to the exigencies of government and the preservation of the Union," to borrow from Congress's charge of 1787 to the Philadelphia Convention, which Madison renders in Federalist No. 45 as adequacy "to the public good, the real welfare of the great body of the people." Second, I would not expect universal agreement on what counts as constitutional failure, perhaps short of a violent revolution. The founding generation reached no consensus on whether the Articles of Confederation had failed. Opposing the changes proposed by the Philadelphia Convention, some Antifederalists claimed that mere (Article XIII) amendments augmenting Congress's powers would suffice to correct the Confederation's deficiencies. Finally, and centrally, an outside observer like Professor Vermeule might contend that disagreement over whether the Constitution (government under the Constitution) is adequate to "the people's welfare" is disagreement either about nothing at all or about something that does not admit of truly better or worse understandings. But should the disagreeing parties themselves reach either conclusion, they would cease to be disagreeing parties. The mere fact of disagreement about either constitutional success or failure would hardly indicate either that there's nothing to disagree about, or that no one answer is better than any other, or that discussants should not seek the better answer, or that they should not reflect on what they are looking for before they start the quest.
6. Randy Barnett, Restoring the Lost Constitution (Princeton: Princeton University Press, 2003), 33-38.
7. Michael P. Zuckert, "On Constitutional Welfare Liberalism: An Old-Liberal Perspective," in Liberalism: Old and New, ed. Ellen Frankel Paul, Fred D. Miller, and Jeffrey Paul (New York: Cambridge University Press, 2007), 313-15.
8. John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1980), 88-101.
9. Martin Diamond, As Far as Republican Principles Will Admit (Washington, DC: AEI Press, 1992), 352-68.
10. Stephen L. Elkin, Reconstructing the Commercial Republic: Constitutional Design after Madison (Chicago: University of Chicago Press, 2006), 5-14, 127-39.
11. Lawrence Sager, Justice in Plain Clothes (New Haven: Yale University Press, 2004), 5-10, 70-83.
12. Cass R. Sunstein, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004), 175-92.
13. Walter F. Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Baltimore: Johns Hopkins University Press, 2007), 7-8, 334-41, 516-17.
14. Alexander Hamilton, James Madison, and John Jay, The Federalist, ed. Jacob E. Cooke (Middletown, CT: Wesleyan University Press, 1961), No. 45, 309.
15. See Sotirios A. Barber, Welfare and the Constitution (Princeton: Princeton University Press, 2003), 8-22, 92-100.
16. For a defense of Ronald Dworkin's approach to constitutional interpretation, see Sotirios A. Barber and James E. Fleming, Constitutional Interpretation: The Basic Questions (New York: Oxford University Press, 2007), 155-70. Dworkin's original theory was set forth in Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1971), 132-37.
17. Herbert J. Storing, What the Anti-Federalists Were For (Chicago: University of Chicago Press, 1981), 69.
18. Sotirios A. Barber, "Fallacies of Negative Constitutionalism," Fordham Law Review 75 (2006): 653-57.
19. Federalist No. 51, 349.
20. Levinson, Undemocratic Constitution, 4.
21. Federalist No. 63, 423-25.
22. and No. 71, 482-83.
23. Barber, Welfare and the Constitution, chaps. 2-4.
24. David O. Brink, Moral Realism and the Foundation of Ethics (Cambridge: Cambridge University Press, 1989), 23-24.
25. Barber, Welfare and the Constitution, 55-64.
26. Federalist Nos. 44-53.
27. See Walter Berns, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976), 64-66.
28. Martin Diamond, The Founding of the Democratic Republic (Belmont, CA: Thompson/Wadsworth, 1981), 72-76.
29. Barber, Welfare and the Constitution, 100-106.
30. Pessimism is justified in view of conditions of the large commercial republic beyond the immediate conditions specified above. These broader conditions include inexhaustible natural resources, nations that peacefully accept the cultural convergence that comes with the unlimited economic expansion of one member or group (i.e., cultures that walk quietly to their deaths), prospects for economic fairness within the expanding member and its partners, prospects for economic fairness within some nations without war (instead of trade) with other nations, the rationality of nuclear war, and technological advance that doesn't create more vulnerabilities than it can compensate for.
31. Murphy, Constitutional Democracy, 131-32.
32. Federalist No. 51, 349.
33. Federalist No. 49, 340-41.
34. Ernest Barker, The Politics of Aristotle (Oxford: Oxford University Press, 1970), 110, 233.
35. Marvin Myers, The Mind of the Founder: Sources of the Political Thought of James Madison (Indianapolis, IN: Bobbs-Merrill, 1973), 387.
36. Federalist No. 84, 580.
37. Diamond, As Far as Republican Principles Will Admit, 337-68.
38. Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (Chicago: University of Chicago Press, 1988).
39. Stephen Macedo, Diversity and Distrust (Cambridge: Harvard University Press, 2000).
40. Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (Cambridge: Harvard University Press, 1996).
41. William Galston, Liberal Purposes: Goods, Virtues, and Purposes in the Liberal State (Cambridge: Cambridge University Press, 1991).
42. Elkin, Reconstructing the Commercial Republic.
43. Wolfe, Does American Democracy Still Work?, 40-49, 53-56.
44. Dworkin, Taking Rights Seriously, 134-37.
45. Michael S. Moore, "A Natural Law Theory of Interpretation," Southern California Law Review 58 (1985): 277-398.
46. See also, Barber and Fleming, Constitutional Interpretation, 155-70.
47. More generally, and pace The Federalist, the rule of law cannot substitute for the rule of human beings where law represents and flows from a commitment to public reasonableness, a virtue.
48. For an argument that public reasonableness is essential to liberalism, see Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Clarendon Press, 1990), 40-45.
49. Roy P. Basler, Abraham Lincoln: His Speeches and Writings (New York: Gosset & Dunlap, 1946), 599-601.
50. 74 U.S. (7 Wall.) 506 (1869).
51. Dismissing the negative-rights model of the Constitution as a whole does not mean dismissing the value of negative rights, for, as already observed, some negative rights are functional to the pursuit of real ends.
52. Barber, Welfare and the Constitution, 100-106.
53. Federalist No. 45, 309.
54. Federalist No. 51, 352.
55. See Barber, Welfare and the Constitution, 103.
56. Gary Wills, A Necessary Evil: A History of American Distrust of Government (New York: Simon & Schuster, 1999), 73-75.
57. Barber and Fleming, Constitutional Interpretation, 117-33. This generalization would not hold for what could be the institutional notions of "reason" and "public reasonableness," for one cannot have a reason for rejecting reason or a public reason for rejecting public reasonableness. (One person or a few persons could of course have reasons for restricting the circle of persons to whom they give reasons.) Reservations in reason's behalf could in turn favor some institutional theories over others. An example might be national federalism over dual federalism. I argue to this effect in a work in progress, borrowing from my previous writings and from recent works like Malcolm M. Feeley and Edward Rubin, Federalism: Political Identity and Tragic Compromises (Ann Arbor: University of Michigan Press, 2008), esp. 103-23.
58. Federalist No. 40, 258-60, 263.
59. Sotirios A. Barber, "Congress and Responsible Government," Boston University Law Review 89 (2009): 702-3.
60. I defend this view of constitutional obligation in On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984), chap. 3.
61. Federalist No. 40, 265 (emphasis in original).
62. Federalist No. 1, 3.
63. and No. 15, 93.
64. Murphy, Constitutional Democracy, 15-16, 522-36.
65. Barber, Welfare and the Constitution, 122-26.
66. Borrowing from Macedo on "public reasonableness" (Liberal Virtues, 41-45) and Diamond's view (from Aristotle) that "each political order is literally constituted by the kind of human character it aims. to form" (As Far as Republican Principles Will Admit, 340). I argue to this effect in "Congress and Responsible Government," 698-703.
67. Federalist No. 1, 3.
68. Federalist No. 40, 265 (emphasis in original).
69. Federalist No. 49, 340-41.