What are we to do about dysfunction? Reflections on structural constitutional change and the irrelevance of clever lawyering

Boston University Law Review

Volumn 94, Issue 3, 2014, Pages 1127-1140

  Levinson, Sanford ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84903731750     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (35)

1. Michael Gerson, It's the Policy, Not the Book, WASH. POST, Jan. 17, 2014, at A15.
2. Dana Milbank, A Mainstream Republican's Glum Farewell, WASH. POST, Dec. 7, 2010, at A2.
3. More recently, John Dingell, announcing his retirement after serving thirty terms in the House of Representatives, declared that "I find serving in the House to be obnoxious." Carl Hulse & Ashley Parker, At 87, the Longest-Serving Member of Congress Says Enough Is Enough, N.Y. TIMES, Feb. 25, 2014, at A16. The story goes on to quote David Goldstone, a former Republican staff member who is now director of government affairs for the National Resources Defense Council: The truly distressing thing about these folks leaving is that they're the ones who know how to negotiate, know how to legislate, know how to get things done⋯. Congress is increasingly left with people who not only don't know how to do those things; they don't know that they can be done. Id.
4. Congressional Job Approval, REAL CLEAR POL., http://www. realclearpolitics.com/epolls/other/congressional-job-approval-903.html (last visited Mar. 4, 2014), archived at http://perma.cc/A4G-KK29 (finding that eighty-one percent of Americans disapproved of Congress's job performance as of February 24, 2014).
5. Direction of Country, REAL CLEAR POL., http://www.realclearpolitics.com/ epolls/other/direction-of-country-902.html (last visited Mar. 4, 2014), archived at http://perma.cc/7ULC-5UPD (finding that 63.2% of Americans believed the country was on the "wrong track" as of February 22, 2014).
6. 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) (arguing that "the constantly repeated 'gridlock' meme misdiagnoses our contemporary ills and as a result suggests reforms that are likely to worsen our political health").
7. See, e.g., Editorial, Health-Care Design Flaws, WASH. POST, Dec. 14, 2013, at A18.
8. See V. I. LENIN, WHAT IS TO BE DONE? (S.V. Utechin ed., S.V. & Patricia Utechin trans., 1963).
9. See GABRIEL A. ALMOND & SIDNEY VERBA, THE CIVIC CULTURE (1963).
10. See, e.g., ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY 347 (2000) (suggesting that "moralistic" states with "merit systems governing the hiring of governmental employees" tend be to less corrupt)
11. ROBERT D. PUTNAM ET AL., MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN MODERN ITALY 167 (1993) ("Success in overcoming dilemmas of collective action and the self-defeating opportunism that they spawn depends on the broader social context⋯. Voluntary cooperation is easier in a community that has inherited a substantial stock of social capital, in the form of norms of reciprocity and networks of civic engagement.").
12. See, e.g., LAWRENCE LESSIG, REPUBLIC, LOST: HOW MONEY CORRUPTS CONGRESS- AND A PLAN TO STOP IT 120-21 (2011) (discussing methods of campaign financing and their ability to distort policy).
13. MICKEY EDWARDS, THE PARTIES VERSUS THE PEOPLE: HOW TO TURN REPUBLICANS AND DEMOCRATS INTO AMERICANS, at xiii (2012) ("To the extent that to be polarized is to inhabit the extreme reaches of a viewpoint, it is clear that the greater degree of polarization⋯ the harder it will be to come together in the national interest.")
14. See, e.g., THOMAS E. MANN & NORMAN J. ORNSTEIN, IT'S EVEN WORSE THAN IT LOOKS: HOW THE AMERICAN CONSTITUTIONAL SYSTEM COLLIDED WITH THE NEW POLITICS OF EXTREMISM 130 (2012) ("The extreme and asymmetric partisan polarization that has evolved over several decades, initially reflecting increasing ideological differences but then extending well beyond issues that ordinarily divide the parties to advance strategic electoral interests, fits uneasily with a set of governing institutions that puts up substantial barriers to majority rule.").
15. SANFORD LEVTNSON, FRAMED: AMERICA'S FIFTY-ONE CONSTITUTIONS AND THE CRISIS OF GOVERNANCE 385-93 (2012) (suggesting that the Constitution's dysfunction renders America "ungovernable")
16. SANFORD LEVTNSON, OUR UNDEMOCRATIC CONSTITUTION 167 (2006) [hereinafter LEVINSON, OUR UNDEMOCRATIC CONSTITUTION] ("[0]ur Constitution is sufficiently defective to warrant significant revision and repair.").
17. See, e.g., STEPHEN L. ELKTN, RECONSTRUCTING THE COMMERCIAL REPUBLIC 7 (2006) (advocating for a "republican government⋯ combined with a business enterprise system that has a substantial private component" in order to achieve Americans' aspirational republic).
18. See, e.g., THE FEDERALIST No. 14, at 99 (James Madison) (Clinton Rossiter ed., 2003).
19. See, e.g., Bruce Ackerman, Higher Lawmaking, in RESPONDING TO IMPERFECTION 63, 86 (Sanford Levinson ed., 1995) ("[H]ad they chose to play punctiliously by the rules of Article V, Reconstruction Republicans and New Deal Democrats confronted the clear and present danger that their long and successful struggle⋯ for fundamental change would be stifled by legalistic nitpicking.")
20. See also 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 7 (1991) (arguing that "constitutional politics" is a "series of political movements")
21. STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM 27-28 (1996) (discussing changes to the Constitution made outside of the Article V context)
22. Sanford Levinson, How Many Times Has the United States Constitution Been Amended? (A) <26; (B) 26; (C) 27; (D) >27: Accounting for Constitutional Change, in RESPONDING TO IMPERFECTION, supra, at 13, 36 (arguing that limiting constitutional amendments to Article V is "simply wrong").
23. L.A. Powe, Jr., October Term 1963: "The Second American Constitutional Convention," 38 J. SUPREME Cr. HIST. 194, 194 (2013).
24. Ronald Dworkin, Law from the Inside Out, N.Y. REV. BOOKS, NOV. 7, 2013, at 54, 54-55 (discussing Professor Dworkin's career and synthesizing aspects of his value-driven interpretative theory).
25. See Justice for Hedgehogs: A Conference on Ronald Dworkin's Forthcoming Book, 90 B.U.L. REV. 465 (2010).
26. See, e.g., SANFORD LEVINSON, CONSTITUTIONAL FAITH 46-47 (1988) (discussing Dworkin as a "constitutional protestant").
27. See, e.g., MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 16 (2004) ("The little that is known about the racial views of the justices on the Plessy Court suggests little deviation from dominant public opinion.").
28. See, e.g., CONSTITUTIONS IN AUTHORITARIAN REGIMES (Tom Ginsburg & Alberto Simpser eds., 2014) (comprising a collection of articles examining constitutions in authoritarian regimes)
29. Li-Ann Thio, Constitutionalism in Illiberal Polities, in THE OXFORD HANDBOOK OF COMPARATIVE CONSTITUTIONAL LAW 133, 138-47 (Michel Rosenfeld & András Sajó eds., 2012) (examining "illiberal constitutionalisms").
30. O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 458 (1897) (arguing that law is "nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court").
31. See Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045, 1066 (2001) ("The most important factor in understanding how constitutional revolutions occur, and indeed, how judicial review works, particularly in the twentieth century, is a phenomenon we call partisan entrenchment.").
32. See JOSE ANTONIO CHEIBUB, PRESIDENTIALISM, PARLIAMENTARISM, AND DEMOCRACY 112 (2007) (refuting the "Linzian view of presidentialism").
33. See Michael Kelly, 'The Unicameral' - Nebraska-Born, Though Not Spread, OMAHA (Feb. 16, 2014, 12:30 AM), http://www.omaha.com/article/20140216/NEWS/ 140219012, archived at http://perma.cc/5MK-JLWD.
34. GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991).
35. Mark Graber, Belling the Partisan Cats: Preliminary Thoughts on Identifying and Mending a Dysfunctional Constitutional Order, 94 B.U. L. REV. 611 (2014).