Friday, December 13, 2013

Is the Constitution the problem?

For about 45 years now, many if not most members of the Boom generation has been convinced that all would be well is they could simply run the world.  Such illusions come naturally from growing up in a remarkably stable society in which parents, convinced that their children would naturally follow in their footsteps, left them alone to form their own opinions.  Their parents' decision to undertake the Vietnam war encouraged Boomer self-confidence.  As I pointed out in one of my very first posts here, no one ever exemplified this aspect of his generation better than George W. Bush.

Jeffrey Toobin, born in 1960, belongs to the very tail end of the Boom generation.  He entered Harvard in 1978 and thus could have been one of the 160 students who took my lecture course during my last two years there, but I do not think that he was.  He is a graduate of Harvard law school whose legal career was brief, and he became a legal journalist instead.  I enjoyed his book on the O. J. Simpson case very much, and most of his work on legal issues is absorbing and very good.  Last week, however, in The New Yorker, he had an article suggesting that what is really wrong with the United States today is--you'll never guess--the U.S. Constitution.  He is not very forthcoming about how exactly he thinks it should be changed, and he has to admit near the end of the article that the Constitution is fiendishly hard to amend, but the article generally gives the feeling that the Constitution strikes him as yet another useless artifact of a bygone era such as dial telephones, cars with fins and V-8 engines, and transistor radio sets.

Toobin begins with an argument that has become fundamental to Boomer academic views of the world.  The worst aspects of the Constitution as adopted in 1787-88, he says, are that it institutionalized "race and gender discrimination."  I am rather fascinated by the popularity of this argument, because anyone who takes the trouble to read the document will realize that it is not true.  Certainly the original Constitution did not outlaw race or gender discrimination, or even slavery, but it did not bless them either.  Slavery at the moment that Constitution was adopted was in retreat.  It was being abolished in the northern states, it had just been banned from the Northwest territories (the future upper midwest), and even many prominent southerners were freeing their slaves upon their death.  The founders took great care not to refer to slavery by name, the reason for the convoluted language that occurs whenever they have to refer to it, such as in the three-fifths clause.  As for gender, the Constitution invariably refers to "persons" or "citizens," not "men," and there was nothing in it to forbid states from granting women the vote, as some of the western ones did in the late nineteenth century.  The abolitionist and escaped slave Frederick Douglass argued exactly the contrary before the Civil War--that the Constitution could not be reconciled with slavery--and that was a stronger argument than the reverse.

Toobin then focuses on the undemocratic features of the Senate as a major source of our ills.  Here he has a much stronger case.  The Senate does give hugely disproportionate power to smaller states, and this is much truer now than it was when the Constitution was adopted.   At that time, Virginia, the largest state, had ten Representatives and Rhode Island one, while both had two Senators. Now California has 53 Representatives and Wyoming and five other states have one each, but all of them still have two Senators.  Toobin then adds that the filibuster has made the Senate an even bigger obstacle to democracy.  He is right, of course, but the filibuster, like slavery in 1787, isn't mandated by the Constitution, it is simply allowed by it, since Article I gives each house of Congress the power to make its own rules.  And indeed, it has been convincingly argued that the Constitution in effect does specify a majority vote as all that is necessary to do business in the Senate, since it specifically calls for a two-thirds vote to ratify treaties or convict an executive officer in an impeachment trial.  Under traditional Anglo-American legal doctrine, tying such a requirement to specific cases implies that it is limited to those cases only.  Unfortunately, the courts have been unwilling to hear this argument, but the Senate itself has just shown that the filibuster rule can be amended by a simple majority vote.

Toobin's argument is based, naturally, upon our current political deadlock, but even there he is on somewhat shaky ground.  The key event of the Obama Administration, of course, was the Republcian landslide in the House of Representatives in 2010, which immediately made it impossible for the President to accomplish anything further.  It is true, as he points out, that the Republicans in several medium-size states promptly gave themselves an unbeatable advantage through redistricting, without which it is possible--although in my opinion, not as likely as one might think--that the Democrats would have regained the House in 2012.  In any case, the more democratically chosen House, not the Senate, has been the major obstacle to getting anything done for the last three years.  (In another misstatement of fact, Toobin claims that the Senate blocked the Clinton health care reform in the 1990s.  As a matter of fact it never passed either house.)

Toobin quotes several legal authorities or polemicists (includng the talk show host Mark Levin, who sometimes sits in for Rush Limbaugh) who also believe the Constitution is fatally flawed.  One law professor, however--Akhil Amar of Yale--argues that the Constitution is not the problem--what is wrong is what has happened to the Republican Party.  "One half of one of our two great political parties has gone bonkers," says Amar.  "That's the problem. Not the Constitution."  That is also a typical Boomer statement, defining anyone in fundamental disagreement with one's self as crazy, but I think it's a great deal closer to the truth than the argument that the Constitution is to blame.

The Constitution itself does not pose an insuperable barrier to effective political change in the United States.  The federal government has had an enormous impact upon American life during the Civil War era, the Progressive era, the New Deal, and the era of the Great Society and its aftermath.  In the last three of those eras a broad consensus led large majorities in both houses to pass sweeping legislation and even constitutional amendments.  That consensus, however, has evaporated over the last half century, and whether or not one chooses to define the Tea Party as "bonkers," that is why we are in the mess that we are in today.

To understand where we are it is not enough to point out that California, with 50 times the population of Wyoming or North Dakota, has the same number of Senators; we must also ask why the Senators from the smaller states see the world so differently.  The smaller states are, in all probably, the ones with the highest percentage of white people (although I am pretty certain that that percentage is falling in every state of the union.)  But more importantly, it seems to me, in the last half century the Democratic Party has failed to persuade the inhabitants of those states that it has anything to offer them.  A large percentage of the population of less populated states were farmers in the New Deal era and even in the middle of the last century, and the New Deal and later farm programs saved them from being wiped out. The New Deal also brought electricity and better roads to the countryside.  Many voters appreciated these changes.  Now farm programs chiefly benefit agribusiness.  Many of the smaller states are dominated by energy producers, a trend which fracking seems to be increasing.  Equally importantly, state governments have drastically been weakened in states like Pennsylvania, Ohio, Wisconsin and Michigan, allowing the Republicans to gain control of those state governments and pass redistricting plans.   As I ponder all this, it occurs to me that the Republicans may understand better than the Democrats how crucial the fight over the Affordable Care Act is.  If it works it could create a major new Democratic constituency in every state of the union.

Toobin's problem--and Amar's--are characteristic of the eastern elite, particularly in academia.  Because academics live in a politically monolithic environment they have trouble taking opposing ideas seriously.  Nor can they believe, given the pampered lives they lead, that there can be anything seriously wrong with the country.  If some one disagrees with them they must simply be crazy; if their ideas do not pass Congress, institutions must be to blame.  Meanwhile, Democrats have collaborated with Republicans in dismantling all the major pillars of the New Deal and allowing inequality to grow.  They should not be shocked that the average American does not put a high priority on keeping them in office.  One of the interesting things about Toobin's article is his failure to discover anyone actively pushing for changes in the Constitution along lines that he would find more congenial.  The activists he interviews who want new amendments are all ultraconservatives who want to cripple the federal government.  Bill James, the founder of baseball statistics, defined in the 1980s something called the law of competitive balance.  Winners, he argued, naturally adopted conservative strategies that rapidly took away their edge; losers tried harder and became winners.  That has been the story of the last 40 years of American politics.  It is the reason that conservatives can now use the Constitution to block progress.  The Constitution is not primarily at fault.


Joseph Young said...

Very sharp case made against these particular criticisms of the US Constitution.

If the Constitution is ever going to be "gutted" it will be under the pretense of striking the legitimacy against the government, rather then inherently against the content of the Constitution itself.

That being said, I've always been a strong proponent of the Kennedy-Young voting system, and its criminal that it hasn't been tried today.

Scott Kair said...

It's farther along than just one columnist peddling a meme. There's been a conference of state legislators to invoke Article V, and the usual suspects with their usual agenda seem to be involved. See

It may be more light than heat, but they're worth keeping an eye on.

Scott Kair

ed boyle said...

In other countries we would just call it "electoral reform" and leave it at that. The number and distribution of representatives across the landscape of a country and whether they are voted in on an individual basis by a majority vote a in USA or from party national lists with a % minimum for a party to participate or a mixed system with half each(as in Germany) is all a good question. Such very basic reforms are hard to push through however and require a basic sense of a national failure or inadequacy as in the last decade or so happened in Italy. The UK rejected such changes recently. Germany had Weimar with its chaos then adopted a very well thought out "modern" system adapted to rural/urban differences and avoids instability simultaneously. Tinkering has recently been made to avoid unfairness as a whole however since rurtal seats were unfairly overweighted in parlament.

A big problem in the USA is that one doesn't allow itself time for such decisions due to national security questions. In other words if the USA were Canada or Australia, they could allow themselves perhaps to change laws and experiment without worrying about global destabilization in case itz does not work. The USA is de facto global policeman and the USD is the global currency. Experimenting here is tabu as foreigners would immediately start circling to see what military or economic advantage a redistribution of power would give them.

Think of the nonsense of Al Gore not demanding a recount in Florida wich would have presumably given him power as a long uncertainty would have been destabilizing. Germany just formed a govt. after 3 months negotiations and the world did not end. The luxury of not being the lord of all one surveys should not be underestimated.

The constitution is not the Bible and eventually electoral reform could be helpful but I also recall the comments of John Major vis a vis European criticisms. He said he knew very well what a coalition govt. was as he had one. He meant that the right and left wings of his party were the same thing as European small partyitis. Essentially if you have a 5% rule then the Tea party would have a party and the moderate repubs another, etc. so it all brings nothing in the end.

If however through tricks the republicans manage to manipulate the ectoral system so that gerrymandering allows minority rule in the states, in the senate(60 votes rule) and then to get passed the laws in the minority ruled states allowing on presidential elections not majority rule to matter but rather majority of gerrymandered districts to matter then the presidency will be unwinnable for democrats, who live massivley in large urban agglomerations.

The spirit of the law would then be completely hollowed out longterm by manipulating the letter of the law with support of very longlived conservative judges on the supreme court and elsewhere(dems nominate often sickly minorties based on female or racial quotas for example).

In combination with the plutocratic tendency of an aging culture and technology this looks more and more like a historical trend of the few, rich to maintain power at the cost of the others through manipulation of the basic framework of the political system.

This has been done in the workplace since Reagan by the strike breaking, destroying unions and shipping jobs abroad and by Walmartization destroying small shops and factories. The stock market has long since lost its democratic tendency and use in society as High frequency trading eliminates real participation and naked shorting can destroy honest start ups illegally.

SO socity as a whole in historical and technical perspecitve in the global framework has to be observed. Reform is often just another political game.