For the symposium on Sanford Levinson as well as Jack M. Balkin, Democracy as well as Dysfunction (University of Chicago Press, 2019).
David Pozen’s postal service suggests that what I telephone weep upwards “the Constitution of settlement” is inward fact potentially less genuinely “settled” than it may appear to be. Before turning to the centre of his argument, allow me say that although I am flattered past times some of the comments he makes close my emphasis on “the Constitution of settlement,” I do non part his apparent belief that it has had much genuine effect on the means that the Constitution is discussed or taught inside the legal academy. That is, our collective attending continues to live on dominated past times the “Constitution of conversation,” specially equally defined past times the willingness of the Supreme Court to consider sure issues. I do non deny the practical importance of what mightiness too live on termed the “litigated Constitution”; if the Court declares that gerrymandering is inward fact non-justiciable or declares, inward the confront of bald-faced lies past times the Trump Administration, that it is perfectly acceptable to add together the citizenship inquiry to the forthcoming census, with readily predictable consequences for undercounting minority respondents and, therefore, affecting reapportionment inward favor of the GOP, that volition sure enough live on significant. But I snuff it along to believe that it is fifty-fifty to a greater extent than important that the Senate is controlled past times a Republican bulk that inward fact stand upwards for considerably less than an actual bulk of Americans, given the consequences of giving equal voting powerfulness to every state. And fifty-fifty if Steve Calabresi is correct, equally discussed inward an before post, that at nowadays Democrats command half-dozen of the twelve smallest states, it is too demonstrably truthful that these states are increasingly unrepresentative of the rich pluralism as well as multi-culturalism that typify the larger states. They are systematically to a greater extent than rural, whiten older, as well as to a greater extent than Protestant than is the residue of the country. But these arguments are old hat, as well as I receive got no argue to believe that Pozen genuinely disagrees with them.
David Pozen’s postal service suggests that what I telephone weep upwards “the Constitution of settlement” is inward fact potentially less genuinely “settled” than it may appear to be. Before turning to the centre of his argument, allow me say that although I am flattered past times some of the comments he makes close my emphasis on “the Constitution of settlement,” I do non part his apparent belief that it has had much genuine effect on the means that the Constitution is discussed or taught inside the legal academy. That is, our collective attending continues to live on dominated past times the “Constitution of conversation,” specially equally defined past times the willingness of the Supreme Court to consider sure issues. I do non deny the practical importance of what mightiness too live on termed the “litigated Constitution”; if the Court declares that gerrymandering is inward fact non-justiciable or declares, inward the confront of bald-faced lies past times the Trump Administration, that it is perfectly acceptable to add together the citizenship inquiry to the forthcoming census, with readily predictable consequences for undercounting minority respondents and, therefore, affecting reapportionment inward favor of the GOP, that volition sure enough live on significant. But I snuff it along to believe that it is fifty-fifty to a greater extent than important that the Senate is controlled past times a Republican bulk that inward fact stand upwards for considerably less than an actual bulk of Americans, given the consequences of giving equal voting powerfulness to every state. And fifty-fifty if Steve Calabresi is correct, equally discussed inward an before post, that at nowadays Democrats command half-dozen of the twelve smallest states, it is too demonstrably truthful that these states are increasingly unrepresentative of the rich pluralism as well as multi-culturalism that typify the larger states. They are systematically to a greater extent than rural, whiten older, as well as to a greater extent than Protestant than is the residue of the country. But these arguments are old hat, as well as I receive got no argue to believe that Pozen genuinely disagrees with them.
Rather, his championship of “the shrinking Constitution of settlement” comes from his perception that what I receive got sometimes labeled the “hard-wired” features of the Constitution are inward fact to a greater extent than vulnerable to a multifariousness of “workarounds.” Thus, he notes the fact that “fifteen jurisdictions,” who cast alongside them 170 electoral votes, “have signed on to the National Popular Vote compact, which would effectively neuter the Electoral College as well as nationalize presidential elections.” This, of course, is true. But 170, though impressive, is far curt of the 270 votes necessary to prevail inward the electoral college, as well as the so-called “compact”—I lay it that means inward guild to highlight the fact that it is non at all clear, equally a legal matter, that the understanding past times the relevant states would live on legally enforceable inward the absence of congressional approval, which mightiness live on rattling difficult to attain, especially inward the egregious Senate—will non boot inward at all unless plenty states concord so that the Electoral College is genuinely “neutered.” Thus no 1 believes that the 2020 election volition live on conducted nether whatsoever variety of reformed scheme. More to the dot is the fact that the proposed compact focuses alone on the problems presented past times the 2000 as well as 2016 elections: the fact that the plurality national vote winner did non prevail inward the electoral vote. I don’t wish to minimize the importance of that fact, especially inward 2016, when Donald Trump clearly as well as unequivocally lost the pop vote past times almost iii 1 grand m votes. But I snuff it along to believe that the 1968 as well as 1992 elections, to get upwards only ii especially important post-World War II elections (and not, for example, the 1912 or 1860 elections), nowadays their ain problems inasmuch equally the ii winners, Richard Nixon as well as Bill Clinton, had the demonstrated back upwards of only 43% of the population, and, of course, were faced equally good past times a “divided” Congress inward which at to the lowest degree 1 work solid was controlled past times the opposition party. I strongly believe that anyone getting to the Oval Office should, equally inward French Republic as well as the American province of Georgia (putting voter suppression to 1 side), live on able to brand a demonstrable claim of back upwards past times the bulk of the electorate, equally through a run-off or utilization of the Alternative Transferrable Vote (now adopted inward Maine). Pozen is sure enough right that at that spot is increasing intelligence alongside academics as well as a few pundits as well as politicians close reforming the electoral college, but I recall it remains to live on seen whether it volition genuine “gain traction” or merely founder on the shoals either of Article V, insofar equally some of the proposed changes would undoubtedly require constitutional amendment, or on the determination past times the Republican Party that the GOP in all probability benefits from continued reliance on the Electoral College and, therefore, volition resolutely vote against whatsoever legislation that would do it in.
I’m too skeptical close the actual viability of proposals to grant statehood to Puerto Rico as well as the District of Columbia. With regard to the former, at that spot is the embarrassing fact that a bulk of voting Puerto Ricans receive got never really endorsed application for statehood. They receive got been outvoted past times those who prefer sticking with the nowadays Commonwealth status, whatever its constitutional problems or advocating out-and-out secession from the American Empire as well as declaring Puerto Rican independence. But, assuming that a majority do indicate a clear wish to bring together the Union equally a state, at that spot is nevertheless the inquiry whether the GOP would tolerate such a result, given the fact that Puerto Rico would live on entitled to at to the lowest degree iv as well as in all probability 5 representatives equally well, of course, equally ii senators, all of whom would live on rattling likely to live on Democrats given the Trump/GOP indifference to Puerto Rico next Maria. The Constitution does require congressional blessing before a novel province tin live on admitted to the Union, as well as at that spot is merely no argue to believe that it would live on forthcoming from the Senate, specially if 1 adds to the mix the possibility of a filibuster past times those who would process equally a bargain breaker the fact that Castilian continues to live on the dominant linguistic communication on the island, including the official linguistic communication of territorial (as distinguished from outposts of the national) government, such equally the judiciary itself. As to the District of Columbia, I confess myself deeply ambivalent. As somebody who is appalled past times the excessive powerfulness held past times little states, including those whose politicians I to a greater extent than oft than non similar as well as concord with, I run into no strong argue to back upwards giving the roughly 1 one grand m residents of the District of Columbia the same voting powerfulness equally the many states that would live on larger. Moreover, 1 must recognize that the District is a society town, consisting disproportionately of those who piece of work for, or lobby, the federal government. Far better, equally world policy, was live on the "recession" of most of the District dorsum to Maryland, so that the District would inward the time to come really live on effectively express to the surface area covered past times federal buildings. In whatsoever event, it is readily understandable that the GOP would sentiment admission of the District equally a province equally a patent slice of "Senate packing." Better to expend such political energies on courtroom packing, whose results would live on to a greater extent than likely to serve liberal political interests!
Corey Robin's comment is directed primarily at Jack's arguments close social movements, though I am gratified past times his understanding that our formal structures receive got something to do with the likely success or failure of such movements. In particular, I recall it is of import to banking concern complaint that some of the programs that are beingness much discussed past times Democrats, specially "insurgents" inward the House of Representatives, are primarily "talk." Medicare for All, whatever 1 thinks of it equally a affair of world policy, is extraordinarily unlikely to snuff it police pull fifty-fifty inward the relatively unlikely trial that the Democrats should sweep the 2020 elections as well as find the Senate. (If the Senate remains Republican, so nosotros should all realize that at that spot is null jeopardy of whatsoever genuinely progressive legislation beingness passed past times Congress, with the outcome beingness that Democrats would in 1 trial once to a greater extent than observe themselves/ourselves supporting dicey exercises of executive powerfulness inward guild make anything at all.)
Corey Robin's comment is directed primarily at Jack's arguments close social movements, though I am gratified past times his understanding that our formal structures receive got something to do with the likely success or failure of such movements. In particular, I recall it is of import to banking concern complaint that some of the programs that are beingness much discussed past times Democrats, specially "insurgents" inward the House of Representatives, are primarily "talk." Medicare for All, whatever 1 thinks of it equally a affair of world policy, is extraordinarily unlikely to snuff it police pull fifty-fifty inward the relatively unlikely trial that the Democrats should sweep the 2020 elections as well as find the Senate. (If the Senate remains Republican, so nosotros should all realize that at that spot is null jeopardy of whatsoever genuinely progressive legislation beingness passed past times Congress, with the outcome beingness that Democrats would in 1 trial once to a greater extent than observe themselves/ourselves supporting dicey exercises of executive powerfulness inward guild make anything at all.)
Pozen may live on right that the veto is exercised with diminished frequency (as is the case, incidentally, too with the utilization of the presidential pardoning power), but it is scarcely absent from our political organization at this rattling instant. Donald Trump has beaten dorsum bi-partisan attempts to rein inward his powerfulness to declare a national emergency on the Southern Border or to participate inward a fell as well as undeclared state of war inward Republic of Yemen past times vetoing legislation. Although at that spot is increasing bi-partisan criticism of “delegation run riot” vis-à-vis the president as well as unusual policy, including setting tariffs, I run into no argue to believe that the criticism is gaining existent traction. And, of course, the catch-22 is that the President is presumably entitled to veto whatsoever legislation that would direct clip his inordinate powers. Just equally Barack Obama shifted over the years from reminding us that he was non “our king” or “emperor” to a de facto willingness to engage inward monarchical dominion when pushed over the border past times an obdurately partisan Congress, 1 tin only wonder close the willingness of a Democratic president, whoever it mightiness be, to convey sabotage from Mitch McConnell, should he snuff it along to live on the bulk leader of the illegitimately apportioned Senate. I emphasized inward our mass that had Hillary won, most of us would live on equally depressed equally nosotros are now, albeit for different reasons. In particular, though, she would live on pushing executive powerfulness to its maximum make (and maybe beyond) because a Republican Congress would inward no means allow whatsoever of her domestic policy proposals to live on realized.
Pozen seems to echo David Mayhew inward declaring that Congress “remain[s] reasonably productive inward the confront of ascension partisan rancor.” I confess I don’t run into that at all. Were Mayhew correct, 1 mightiness await to run into a higher degree of blessing or, or confidence in, Congress past times the American public. As of the terminate of May, most Americans snuff it along to “disapprove” of Congress. A Reuters/Ipsos poll shows a surprisingly high blessing charge per unit of measurement of 26%, but this is offset past times the fact that 66% disapprove. An Economist poll indicates only 17% approval, with a 62% disapproval rate. Moreover, only a fraction to a greater extent than than one-third of earth believes that the dry ground is moving inward the right direction.
Pozen too notes, altogether accurately, that many “prominent commentators as well as advocacy groups” on both the left as well as right believe—I recall altogether correctly—that life tenure for Supreme Court justices is an thought whose fourth dimension has passed. But that inward no means at all is translating into whatsoever actual likelihood of reform. As noted inward my reply to Steve Calabresi, who too agrees that it is fourth dimension for a change, he represents most lawyers (though non myself and, maybe Pozen) inward believing that a constitutional amendment would live on necessary, as well as I am non aware that anyone has fifty-fifty bothered to introduced such an amendment, nor, for what it is worth, do I know of whatsoever actual legislation that would inward fact bear witness the possibility of doing an terminate run roughly Article V. None of the myriad of Democratic presidential candidates, fifty-fifty those willing to criticize the electoral college, has really attempted to generate a serious intelligence of the federal judiciary inward full general or the Supreme Court inward particular. Should the Supreme Court inward fact dominion gerrymandering to live on non-justiciable as well as allow the citizenship inquiry on the census—and, who knows, revisit the 5-4 Arizona determination that barely allowed the voters of Arizona to transfer reapportionment from the province legislature to a province commission—then I recall it would live on incumbent to lay all options on the table, including court-packing.
I of course of didactics concord with Pozen that 1 ought non overestimate the rigidity of the distinction betwixt the Constitutions of “settlement” as well as “conversation.” I receive got never rested that distinction on a theory of linguistics that asserts a hard-and-fast distinction betwixt the ii categories of speech. My approach is relentlessly pragmatic, resting only on the belief that nosotros inward fact operate equally if at that spot is a distinction. Everything tin live on problematized inward a sufficiently high-theory seminar, but nosotros accept, for example, the fact that “two” (as inward ii senators/state) or Jan twenty (as inward the 20thAmendment’s setting out of Inauguration Day) are non discipline to the same variety of audacious interpretive moves as, say, the Equal Protection Clause. I receive got written elsewhere of the irrelevance of Ronald Dworkin’s Hercules when faced with some of these textual features of the Constitution. This is why I emphasize the importance close talking close the wisdom of the Constitution instead of concentrating only on its meaning.
Finally, I couldn’t concord to a greater extent than that I require a considerably ameliorate worked-out theory of “democracy” going into the future. I am confident that the Constitution is “undemocratic” nether whatsoever plausible 21stcentury theory of democracy, but that completely begs the inquiry of what the best 21st century theory mightiness really live on given the actual world(s) nosotros alive in. Can any theory of republic really brand feel for a dry ground of 325 1 grand m people, allow lonely the far vaster territories encompassed past times Calabresi’s fascinating telephone weep upwards for a to a greater extent than vigorous transnatioal polity inward at to the lowest degree some respects? Jack is spending to a greater extent than as well as to a greater extent than of his fourth dimension studying the profound implications of modern social media, which telephone weep upwards into inquiry all sorts of assumptions nosotros receive got relied on for our theories of the First Amendment (for starters). I shall address inward another postings, including a forthcoming review for of Ken Kersch’s extraordinary mass on conservative approaches to the Constitution, of the fact that the legal academy, overall, pays insufficient attending to political theory, including the rich literature on the meanings of democracy. This too has of import implications, incidentally, for the continued viability of whatsoever theory of “popular sovereignty” and, concomitantly, the powerfulness to depict on a purported “constituent power” that is capable of making geneine decisions based on what Publius called “reflection as well as choice” close how nosotros are to live on governed.
Let me conclude, though, with acknowledging my deepest gratitude to David Pozen for his thoughtful as well as challenging remarks on our mass and, inward particular, my ain attempts to brand feel of the Constitution equally a document genuinely constitutive of our political order.
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