Successful failures of the American constitution

The Limits of Constitutional Democracy

Volumn , Issue , 2010, Pages 29-46

  Fleming, James E ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 84883944469     PISSN: None     EISSN: None     Source Type: Book    
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References (91)

1. Sotirios A. Barber, "Constitutional Failure: Ultimately Attitudinal," chapter 1 in this volume.
2. Dandridge v. Williams, 397 U.S. 471 (1970).
3. San Antonio v. Rodriguez, 411 U.S. 1 (1973).
4. Harris v. McRae, 448 U.S. 297 (1980).
5. DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189 (1989).
6. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
7. Plessy v. Ferguson, 163 U.S. 537 (1896).
8. Korematsu v. United States, 323 U.S. 214 (1944).
9. Slaughter-House Cases, 83 U.S. 36 (1872).
10. Bowers v. Hardwick, 478 U.S. 186 (1986). Fortunately, Bowers was overruled by Lawrence v. Texas, 539 U.S. 558 (2003). 5.Buckley v. Valeo, 424 U.S. 1 (1976).
11. Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (Cambridge: Harvard University Press, 2005).
12. Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton: Princeton University Press, 2006).
13. Alan Wolfe, Does American Democracy Still Work? (New Haven: Yale University Press, 2006).
14. and Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (New York: Oxford University Press, 2006).
15. John Dean, Broken Government: How Republican Rule Destroyed the Legislative, Executive, and Judicial Branches (New York: Viking, 2007).
16. Thomas Mann and Norman Ornstein, The Broken Branch: How Congress Is Failing America and How to Get It Back on Track (New York: Oxford University Press, 2006).
17. Larry J. Sabato, A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country (New York: Walker, 2007).
18. Robert Kuttner, The Squandering of America: How the Failure of Our Politics Undermines Our Prosperity (New York: Alfred A. Knopf, 2007).
19. and Sheldon Wolin, Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism (Princeton: Princeton University Press, 2008).
20. Mark Brandon, Free in the World: American Slavery and Constitutional Failure (Princeton: Princeton University Press, 1998).
21. John Finn, Constitutions in Crisis: Political Violence and the Rule of Law (New York: Oxford University Press, 1991).
22. and Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Durham, NC: Duke University Press, 2004).
23. William F. Harris II, The Interpretable Constitution (Baltimore: Johns Hopkins University Press, 1993).
24. Sotirios A. Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press,1984).
25. Mark Brandon has offered a useful typology, distinguishing four distinct types or domains of constitutional failure: a failure of constitutionalism.
26. a failure of a constitution.
27. a failure of constitutional order.
28. and a failure of constitutional discourse. Brandon strikingly observes that success in one domain can contribute to failure in another, and vice versa. Brandon, Free in the World, 18-22. I would add that we might even conceive of successful failures: features of a constitution that fail to work as contemplated or designed (from the standpoint of some interpretations) but nonetheless work tolerably well or even better than contemplated or designed and in that sense are successful. I say more about this in the final section.
29. 531 U.S. 98 (2000).
30. See, e.g., Dworkin, Democracy, 52-55.
31. James E. Fleming, Securing Constitutional Democracy: The Case of Autonomy (Chicago: University of Chicago Press, 2006), 226.
32. See Wolfe, Democracy.
33. See Mann and Ornstein, Broken Branch.
34. Christopher L. Eisgruber, "Comments for Panel on 'Philosophical and Theoretical Perspectives on Constitutional Failure and Success,'" presented at the conference on "The Limits of Constitutional Democracy," Princeton University, February 15, 2008.
35. Barber, "Constitutional Failure.".
36. I want to thank Steve Macedo and Jeff Tulis for pressing this possibility.
37. Levinson, Undemocratic Constitution, 22-24.
38. 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. Mann and Ornstein diagnose the institutional failure of Congress.
39. 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 does.
40. Levinson, Undemocratic Constitution, 94.
41. See also Sanford Levinson and Jack M. Balkin, "Constitutional Crises," University of Pennsylvania Law Review 157 (2009): 707.
42. The Constitution, even if not perfectly democratic, is still standing, and so these "hard-wired" features of the structural Constitution have not caused failure yet. And so, if Levinson's diagnosis is one of constitutional failure, it presumably is an argument that the seeds of failure were planted by mistakes at the very beginning and that these seeds are ripening into possible failure at some point in the future. In any case, he is not arguing that the Constitution, however woefully undemocratic, has failed. (Quite apart from Levinson's analysis of the "hard-wired" features of the structural Constitution, I hasten to acknowledge that some have argued that the Constitution did fail during the Civil War, in part because of the seeds of failure that were planted at the very beginning.
43. See, e.g., Brandon, Free in the World.
44. Mark A. Graber, Dred Scott and the Problem of Constitutional Evil [New York: Cambridge University Press, 2006].).
45. 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, such as policy-based presidential vetoes and filibusters in the Senate, developed over time.
46. 531 U.S. 98 (2000).
47. See Levinson, Undemocratic Constitution, 81-97.
48. Fleming, Securing Constitutional Democracy, 4, 16, 210-11.
49. Henry P. Monaghan, "Our Perfect Constitution," New York University Law Review 56 (1981): 353.
50. Christopher L. Eisgruber, "Justice and the Text: Rethinking the Constitutional Relation between Principle and Prudence," Duke Law Journal 43 (1993): 1, 7.
51. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Cambridge: Harvard University Press, 1996), 38.
52. Dworkin, Democracy.
53. Walter F. Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Baltimore: Johns Hopkins University Press, 2007).
54. Barber, "Constitutional Failure.".
55. Walter F. Murphy, James E. Fleming, Sotirios A. Barber, and Stephen Macedo, American Constitutional Interpretation, 4th ed. (New York: Foundation Press, 2008), 1-21.
56. Murphy, Constitutional Democracy, 460-96.
57. Sotirios A. Barber and James E. Fleming, Constitutional Interpretation: The Basic Questions (New York: Oxford University Press, 2007).
58. Fleming, Securing Constitutional Democracy.
59. Fleming, Securing Constitutional Democracy, 70-71, 74, 167-70.
60. James E. Fleming, "The Constitution Outside the Courts," Cornell Law Review 86 (2000): 215.
61. James E. Fleming, "Judicial Review without Judicial Supremacy: Taking the Constitution Seriously Outside the Courts," Fordham Law Review 73 (2005): 1377.
62. See Fleming, Securing Constitutional Democracy, 20-21, criticizing Robert H. Bork, The Tempting of America (New York: Free Press, 1990), 143-60, and Antonin Scalia, "Originalism: The Lesser Evil," University of Cincinnati Law Review 57 (1989): 849, 862-64.
63. Antonin Scalia, A Matter of Interpretation (Princeton: Princeton University Press, 1997), 40-41.
64. See Barber and Fleming, Constitutional Interpretation, 79-98.
65. Murphy, Constitutional Democracy, 460-96.
66. Barber, "Constitutional Failure".
67. Murphy, Constitutional Democracy, 17-19, 497-529.
68. Murphy, Constitutional Democracy, 18-19, 516-21. I should also mention Harris's rich and subtle analysis of the limits of textual amendability. Harris, Interpretable Constitution, 164-208.
69. Fleming, Securing Constitutional Democracy, 10, 73-74.
70. Murphy, Constitutional Democracy, 506-8.
71. Fleming, Securing Constitutional Democracy, 10, 73-74.
72. Washington v. Glucksberg, 521 U.S. 702 (1997), criticized in Fleming, Securing Constitutional Democracy, 220-26.
73. Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, 1991). I have developed a fuller analysis of Ackerman's argument in James E. Fleming, "We the Exceptional American People," in Constitutional Politics: Essays on Constitution Making, Maintenance, and Change, ed. Sotirios A. Barber and Robert P. George (Princeton: Princeton University Press, 2001), 91.
74. Ackerman, We the People, 14-15.
75. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), 239.
76. Samuel Freeman, "Original Meaning, Democratic Interpretation, and the Constitution," Philosophy & Public Affairs 21 (1992): 3, 41-42.
77. Levinson, Undemocratic Constitution, 11-24.
78. Murphy et al., American Constitutional Interpretation, 45-64.
79. Levinson, Undemocratic Constitution, 22, 108.
80. Barber, "Constitutional Failure.".
81. 17 U.S. 316 (1819).
82. See, e.g., Mark Tushnet, The New Constitutional Order (Princeton: Princeton University Press, 2003).
83. Fleming, Securing Constitutional Democracy.
84. Barber and Fleming, Constitutional Interpretation, 189-92.
85. Levinson, Undemocratic Constitution, 81-97.
86. I should also mention the successful failure of the founding fathers to anticipate the rise of parties and the rise of presidential democracy (here, of course, I allude to Bruce Ackerman's recent book).
87. See Ackerman, Failure.
88. The 1996 First Things symposium is reprinted in Mitchell S. Muncy and Richard John Neuhaus, eds., The End of Democracy: The Celebrated First Things Debate with Arguments Pro and Con and "The Anatomy of a Controversy" (Dallas: Spence Publishing, 1997).
89. 505 U.S. 833 (1992).
90. 517 U.S. 620 (1996).
91. See, e.g., Fleming, Securing Constitutional Democracy, 2-4, 96, 192.