The new constitution of the united states: Do we need one and how would we get one?

Boston University Law Review

Volumn 94, Issue 3, 2014, Pages 711-739

  Beermann, Jack M ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 84903701057     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (81)

1. See, e.g., Yasmin Dawood, Democratic Dysfunction and Constitutional Design, 94 B.U. L. REV. 913 (2014)
2. Gary Lawson, One(?) Nation Overextended, 94 B.U. L. REV. 1109 (2014)
3. Sanford Levinson, What Are We to Do About Dysfunction? Reflections on Structural Constitutional Change and the Irrelevance of Clever Lawyering, 94 B.U. L. REV. 1127 (2014)
4. R. Shep Melnick, The Conventional Misdiagnosis: Why "Gridlock" Is Not Our Central Problem and Constitutional Revision Is Not the Solution, 94 B.U. L. REV. 767 (2014).
5. Consider as an example the correlation between taking vitamin E supplements and an increased risk of prostate cancer. Eric Klein, M.D. et al., Vitamin E and the Risk of Prostate Cancer: The Selenium and Vitamin E Cancer Prevention Trial (SELECT), 306 JAMA, 1549, 1555 (2011). The Food and Drug Administration (FDA), however, cannot wam us about this risk, since a statutory provision known as the Proxmire amendment (named after its champion, Senator William Proxmire) restricts the FDA's authority to regulate vitamins and supplements.
6. See Health Research and Health Services Amendments of 1976, Pub. L. No. 94-278, tit. V, § 501(a), 90 Stat. 401, 410 (codified as amended at 21 U.S.C. § 350 (2012)
7. Nat'l Nutritional Foods Ass'n v. Kennedy, 572 F.2d 377, 382 (2d Cir. 1978). This amendment was enacted in response to intense lobbying by the vitamin and supplement industry after the FDA began to take action against unsafe and ineffective vitamins and supplements.
8. See Jack M. Beermann, The Public Pension Crisis, 70 WASH. & LEE L. REV., 3, 16 (2013).
9. Lori Montgomery, Obama Gets Bill to Fund Government Until Oct. 1, WASH. POST, Jan. 17, 2014, at A2.
10. See, e.g., Joshua Green, Boehner Gets It over with, Agrees to Tie Overall Budget to Obamacare Funding, BLOOMBERG BUSINESSWEEK (Sept. 18, 2013), http://www.businessweek.com/articles/2013-09-18ftoehner-gets-it-over-with- agrees-to-tie-overall-budget-to-obamacare-funding, archived at http://perma.cc/ML2B-FDJU.
11. Jonathan Weisman & Ashley Parker, Republicans Back Down, Ending Budget Crisis, N.Y. TIMES, Oct. 17, 2013, at A1.
12. See, e.g., Frank B. Cross, The Ideology of Supreme Court Opinions and Citations, 97 IOWA L. REV. 693, 697-98 (2012)
13. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTTTUDINAL MODEL REVISITED 229 (2002)).
14. Citizens United v. FEC, 558 U.S. 310, 343 (2010) (holding that a corporation is a person entitled to the same political free speech protections as any natural person).
15. District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (recognizing an individual's constitutional right to bear arms that cannot be infringed by the federal government)
16. see also McDonald v. City of Chi., 130 S. Ct. 3020, 3042 (2010) (incorporating the holding of Heller against state and local governments).
17. Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (holding that a statutory ban on partial-birth abortions did not impose an undue burden on a woman's right to an abortion)
18. see also McCullen v. Coakley, 708 F.3d 1, 14 (1st Cir. 2013), cert, granted, 133 S. Ct. 2857 (2013).
19. E.g., Mut. Pharm. Co. v. Bartlett, 133 S. Ct. 2466, 2473 (2013) (holding that New Hampshire's strict design-defect law was preempted by a federal law that prohibited generic drug manufacturers from changing their warning labels unilaterally).
20. See, e.g., BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC 184-85 (2010)
21. Jack M. Beermann, A Skeptical View of a Skeptical View of Presidential Term Limits, 43 CONN. L. REV. 1105, 1111-12 (2011)
22. William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B.U. L. REV., 505, 521 (2008).
23. See, e.g., Jeremy Paul, If It Quacks Like a Lame Duck, Can It Lead the Free World?: The Case for Relaxing Presidential Term Limits, 43 CONN. L. REV. 1097, 1100 (2011).
24. See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006).
25. Greg Giroux, Republicans Win Congress as Democrats Get Most Votes, BLOOMBERG (Mar. 18, 2013, 8:00 PM), http://www.bloomberg.com/news/2013-03-19/ republicans-win-congress-as-democrats-get-most-votes.html, archived at http://perma.cc/6N8Y-UZ5Z.
26. See, e.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.").
27. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) ("Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.")
28. see also Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (holding that a statutory ban on partial-birth abortions did not impose an undue burden on a woman's right to an abortion).
29. See, e.g., City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 465 (1983) (O'Connor, J., dissenting) ("[W]hen we are concerned with extremely sensitive issues, such as [abortion], the appropriate forum for their resolution in a democracy is the legislature." (internal quotation marks omitted)).
30. Though the Supreme Court has held that allegations of partisan gerrymandering may present justiciable equal protection claims, the Court has made it virtually impossible for plaintiffs to win such claims. See Davis v. Bandemer, 478 U.S. 109 (1986).
31. See, e.g., Noah Feldman, How the Tea Party Will Die, BLOOMBERG (Oct. 17, 2013), http://www.bloomberg.com/news/2013-10-17/how-the-tea-party-will-die.html, archived at http://perma.cc/DTZ5-XEFR (describing how Tea Party legislators moved further to the right to avoid being voted out of office for being too "moderate").
32. Calder v. Bull, 3 U.S. (3 Dall.) 386, 398 (1798) (opinion of Iredell, J.).
33. The President's News Conference, 2013 DAILY COMP. PRES. DOC. 691 (Oct. 8, 2013).
34. In France, for example, there are strict limits on the length of a campaign season. See, e.g., Campaign Finance: France, LAW LIBRARY OF CONG., http://www.loc.gov/law/help/campaign-finance/france.php#t9 (last visited Mar. 2, 2014), archived at http://perma.cc/7R5K-JCTV ("[T]he length of an official campaign is very brief. As a general rule, it only lasts for the two weeks preceding the first ballot⋯.").
35. District of Columbia v. Heller, 554 U.S. 570, 635 (2008).
36. McDonald v. City of Chi., 130 S. Ct. 3020, 3042 (2010).
37. See generally Jack M. Beermann, The Supreme Common Law Court of the United States, 18 B.U. PUB. INT. L.J. 119 (2008).
38. See Jack M. Beermann, The Unhappy History of Civil Rights Legislation, Fifty Years Later, 34 CONN. L. REV. 981, 1027-29 (2002).
39. See generally Erwin Chemerinsky, The Price of Asking the Wrong Question: An Essay on Constitutional Scholarship and Judicial Review, 62 TEX. L. REV. 1207 (1984).
40. Gabriel J. Chin & Randy Wagner, The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 HARV. C.R.-C.L. L. REV. 65, 66 (2008).
41. Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (suggesting the use of stricter judicial scrutiny for unconstitutional or "undesirable" legislation).
42. See Election 2012: Results, CNN (Dec. 10, 2012, 11:22 AM), http://www.cnn.com/election/2012/results/main, archived at http://perma.cc/7DCC- MDXF.
43. See U.S. House: Full Results, CNN (Dec. 10, 2013, 10:42 AM), http://www.cnn.com/election/2012/results/race/house, archived at http://perma.cc/EQ7W-48UK.
44. See The Situation Room (CNN television broadcast Oct. 17, 2013) (transcript archived at http://perma.cc/6K7A-M2G7).
45. See James Ball, Edward Snowden NSA Files: Secret Surveillance and Our Revelations So Far, GUARDIAN (Aug. 21, 2013,3:36 PM), http://www.theguardian. com/world/2013/aug/21/edward-snowden-nsa-files-revelations, archived at http://perma.cc/QK6R-92T3.
46. See Sanford Levinson, Commentary, Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won't It Go Away?, 33 UCLA L. REV., 257, 272 (1985).
47. This policy, known as the "Hasten rule," limits the ability of minority parties to effectuate their policy agenda in the House of Representatives. See Jake Sherman & Jonathan Allen, Boehner Seeks 'Majority of the Majority,' POLITICO (July 30, 2011, 5:13 PM), http://www.politico.com/ news/stories/0711/60296.html, archived at http://perma.cc/7L2T-GLAV.
48. As another example of extremism, consider how far Governor Mitt Romney had to move to the right to win the party's presidential nomination in 2012. See Bill Adair & Louis Jacobson, PolitiFact's Guide to Mitt Romney's Flip-Flops, TAMPA BAY TIMES POLITIFACT (May 18, 2012, 5:56 PM), http://www.politifact.com/truth-o-meter/article/2012/may/18/politifacts-guide- mitt-romneys-flip-flops, archived at http://perma.cc/LRY6-HL3K. His positions taken during the Republican Party primary elections, which were very different from his behavior as Governor of Massachusetts, made it virtually impossible for him to win a general election.
49. See McCutcheon v. FEC, 82 U.S.L.W. 4217 (2014) (plurality opinion) ("[W]e conclude that the aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley. They instead intrude without justification on a citizen's ability to exercise 'the most fundamental First Amendment activities.'"
50. Buckley v. Valeo, 424 U.S. 1, 14 (1976))).
51. Davis v. Bandemer, 478 U.S. 109, 119 (1986).
52. See, e.g., Larios v. Cox, 300 F. Supp. 2d 1320, 1356-57 (N.D. Ga. 2004) (finding a violation of the one-person, one-vote principle due to population disparities in state legislative districts, but rejecting plaintiffs' partisan gerrymandering claim), ajfd, 542 U.S. 947 (2004) (mem.). Justice Scalia's dissenting opinion from the Court's summary affirmance in Larios is worth reading because it reflects the Court's deferential view toward partisan gerrymandering claims. Id. at 951-52 (Scalia, J., dissenting).
53. See Thomas Rice et al., The Medicare Catastrophic Coverage Act: A Post-Mortem, 9 HEALTH AFF. 75, 76 (1990).
54. See, e.g., October 2013 Post-ABC Poll - Obama, Republicans and Shutdown Fallout, WASH. POST, Oct. 22, 2013, http://www.washingtonpost.com/page/2010- 2019/WashingtonPost/2013/10/22/National-Politics/Polling/question-12178.xml? uuid=wG00WjrOEeOw53FheaLCxw, archived at http://perma.cc/F27S-YA7M (select "Party/Ideology" from the "Show results by" dropdown menu) (reporting that a majority of conservative Republicans polled supported the Tea Party's obstructionist strategy during the fiscal cliff showdown).
55. See Will Weissert, Ted Cruz Points Finger at GOP Colleagues: 'I Am Hopeful That in the Future the Senate Will Listen', HUFFINGTON POST (Oct. 19, 2013, 3:13 PM), http://www.huffingtonpost.com/2013/10/19/ted-cruz-gop-n-4129375. html, archived at http://perma.cc/D4KA-4U5U.
56. See U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES 24 tbl.19 (2012), archived at http://perma.cc/R4VE-TJYL (compiling population data by state).
57. Reynolds v. Sims, 377 U.S. 533, 576-77 (1964).
58. STANDING RULES, ORDERS, LAWS, AND RESOLUTIONS AFFECTING THE BUSINESS OF THE UNITED STATES SENATE, S. DOC. No. 110-1, R. XXII(2) (2008).
59. Jeremy W. Peters, Democrats Poised to Block Filibusters of Presidential Picks, N.Y. TIMES, NOV. 21, 2013, at A20
60. see also 159 CONG. REC. S8419 (daily ed. Nov. 21, 2013) (statement of Sen. Tom Harkin).
61. See 159 CONG. REC. S8419 (daily ed. Nov. 21, 2013).
62. Josh Chafetz & Michael J. Gerhardt, Debate, Is the Filibuster Constitutional?, 158 U. PA. L. REV. ONLINE, 245, 256 (2010), http://www.pennlawreview.com/debates/index.php7id=36 ("A longstanding practice of the Senate is the entitlement of each senator to ask the majority leader to place a temporary, anonymous hold on virtually any piece of legislative business headed to the floor.").
63. Steve Almasy, There's a Little Pork in That Bill: The 5 Most Surprising Provisions in the Debt Deal, CNN (Oct. 17, 2013), http://www.cnn.com/2013/10/17/ politics/new-debt-deal-pork, archived at http://perma.cc/F9E6-3BJ6.
64. Eric Moskowitz, Add Interest, and Big Dig Cost Expected to Top $24b, BOS. GLOBE, July 11, 2012, at B1.
65. See generally MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT (2d ed. 1989).
66. Ted Barrett, Obama Nominees Could Be Slowed over Benghazi Concerns, CNN (Oct. 28, 2013, 5:10 PM), http://politicalticker.blogs.cnn.com/2013/10/28/obama- nominees-could-be-slowed-over-benghazi-concems, archived at http://perma.cc/ M8DG-UL2L.
67. See Binyamin Appelbaum, Former Ohio Attorney General to Head New Consumer Agency, N.Y. TIMES, July 18, 2011, at B1.
68. See Danielle Douglas, Senate Confirms Cordray to Head Consumer Agency, WASH. POST, July 17, 2013, at A12.
69. See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2639-40 (2010) (holding that the NLRB cannot issue binding orders without at least three members)
70. Joseph P. Mastrosimone, Ending the War Games over the NLRB, HUFFINGTON POST POL. BLOG (July 23, 2013, 11:50 AM), http://www.huffingtonpost.com/joseph- p-mastrosimone/nlrb-appointments-filibuster-b-3639853.html, archived at http://perma.cc/PQB6-HHCG ("While the National Labor Relations Act requires a five-member Board⋯ the Board has had a full complement for only 55 of the past 163 months⋯.").
71. See NLRB v. Enter. Leasing Co. Se., 722 F.3d 609, 652 (4th Cir. 2013)
72. NLRB v. New Vista Nursing & Rehab., LLC, 719 F.3d 203, 221 (3d Cir. 2013)
73. Noel Canning v. NLRB, 705 F.3d 490, 506-07 (D.C. Cir. 2013), cert, granted, 133 S. Ct. 2861 (2013).
74. See Jack M. Beermann, Congressional Administration, 43 SAN DIEGO L. REV. 61 (2006).
75. See, e.g., Jeffrey Young, Obamacare Launch Day Plagued by Website Glitches, HUFFINGTON POST (Oct. 1, 2013, 1:23 PM), http://www.huffingtonpost. com/2013/10/01/obamacare-glitches-n-4023159.html, archived at http://perma.cc/YVF6-JPFU.
76. Obama's Second-Term Cabinet, CNN, http://www.cnn.com/interactive/2012/ll/ politics/obama-cabinet (last visited Mar. 2, 2014), archived at http://perma.cc/C33X-3K8B (reporting that former Senator John Kerry replaced Hillary Clinton, also a former Senator, as Secretary of State).
77. See National Presidential Summary, WASH. POST (Dec. 21, 2000), http://www.washingtonpost.com/wp-srv/onpolitics/elections/2000/results/ whitehouse, archived at http://perma.cc/6JYM-2XKE.
78. For more information on the National Popular Vote movement, see NAT'L POPULAR VOTE!, http://www.nationalpopularvote.com (last visited Mar. 2, 2014).
79. See Myths About the U.S. Constitution, NAT'L POPULAR VOTE, http://www.nationalpopularvote.com/pages/answers/section.php?s=1#ml-1 (last visited Mar. 2, 2014), archived at http://perma.cc/9X72-THP9.
80. The Supreme Court has stated that states have plenary power to determine the method for selecting presidential electors. See McPherson v. Blacker, 146 U.S. 1, 35 (1892).
81. That does not mean, however, that state power is unlimited. Imagine for example a state law that simply promised its electors to the candidate coming in second in the state's popular vote. Would that be constitutional? Bush v. Gore, 531 U.S. 98 (2000), implies that state law concerning the awarding of electors is subject to a significant measure of federal control.