Reply To Critics-- Role One

For the symposium on Sanford Levinson as well as Jack M. Balkin, Democracy as well as Dysfunction (University of Chicago Press, 2019).

Given that the critiques of our book Democracy as well as Dysfunction totaled to a greater extent than than forty single-spaced pages, it seems advisable to offering my ain replies inwards several split postings, partly to brand them of manageable size as well as to let me to address at to a greater extent than than scattershot length the diverse points that are made.  I get down amongst the critiques that are offered past times Eric Posner, Mark Graber, Gerard Magiacca, as well as Julia Azari.  

Eric suggests that at that topographic point are relatively few genuine differences betwixt Jack as well as myself, that it would receive got been to a greater extent than interesting had nosotros engaged inwards the same sort of epistolary exchanges amongst persons whose views are significantly different from our own.  Not surprisingly, I mean value that he underestimates the extent to which Jack as well as I disagree, fifty-fifty if nosotros produce receive got attention to recognize the strengths of each other’s arguments.  But it’s in all likelihood truthful that, overall, nosotros elaborate arguments that nosotros receive got been making, commonly to the basis but frequently to each other every bit good inwards individual conversations, over the past times decade.  Still, for those who receive got non been assiduously reading our piece of job over the past times decade, I produce promise that the mass offers a readily accessible overview of our arguments, including the marker to which I expire on to assert the importance of fundamental constitutional reform every bit against Jack’s to a greater extent than optimistic, inwards context, focus on American political civilization as well as the possibility of regenerative social movements.

I readily concord that it would travel interesting to receive got epistolary encounters of the variety that Eric suggests, as well as I’d happily get down amongst Eric himself.  For example, I am curious almost the marker to which Eric has changed his ain heed almost the phenomenon of what he as well as Adrian Vermeule dismissed inwards their book The Executive Unbound:  After the Madisonian Republic (2010): i.e., whatever fears that the thoroughly Schmittian executive they defended would inwards fact generate the possibility of “tyranny” inside the United States.  Indeed, they offered the dismissive epithet of “tyrannophobia” amongst regard to such fears. I portion their sentiment that Schmitt, whatever his obvious defects every bit a human being, has much to learn analysts of contemporary authorities as well as constitutionalism, but I did mean value at that topographic point was a sure insouciant exuberance to their encompass of the nearly legally unfettered executive.  Much to Eric’s credit, he has (unlike his co-author) larn a leading critic of Donald Trump.  At the real least, he appears far less complacent than was the representative inwards what appears straightaway the long-ago days of 2010!

I would likewise savour the chance to engage inwards extended exchanges amongst my friend Randy Barnett, who titled his ain book The Republican Constitution in component division every bit a reply to my ain insistence almost ours existence an “undemocratic Constitution.”  Similarly, I am peculiarly grateful for Steve Calabresi’s extended polemic almost the virtues of the U.S. Constitution, which I shall address inwards my side past times side response.  And I receive got noted on the conlawprof listserv my genune gratitude for the presence on it of University of Savannah Law School Professor Joseph D’Agostino, i of the few persons inside the legal university who appears to travel an unabashed supporter of “illiberal constitutionalism” of the variety identified, say, amongst Victor Orban as well as other European authoritarians.

One of the realities of our introduce province of affairs is that conventional categories of “right” as well as “left,” “liberal” as well as “conservative,” are existence tested past times the challenge of genuinely responding to the demons that Donald Trump as well as his genuinely sad enablers (and useful idiots) receive got unleashed.  Many of my personal contemporary heroes are conservatives, similar Michael Gerson, who receive got been willing to rupture long-established associations as well as friendships because of their worry almost what Donald Trump is doing to the country.

Similarly, it is fifty-fifty easier to concord amongst Mark as well as Gerard (and several other writers) that it is parochial to focus only on the the States amongst regard to the challenges presented to the liberal constitutional order.  I am delighted, for example, to receive got this chance to tout the mass co-edited past times Mark Graber, Mark Tushnet, as well as myself, Constitutional Democracy inwards Crisis?published past times the Oxford University Press terminal fall.  It contains 38 essays, past times 42 authors, almost a issue of countries across the basis every bit good every bit broad thematic topics similar globalization, immigration, as well as the like.  Jack as well as I receive got before quoted Kipling’s inquiry “what produce they of England know who only England know?” as well as it is for certain the representative that no serious analyst of our ain discontents tin ignore what is taking house roughly the world.  My ain preference for parliamentarianism over presidentialism is for certain tested past times what has happened (or is taking house before our real ideas) inwards Great Britain, Israel, or Hungary.  

Julia Azari titles i of her sections “the limits of institutions,” as well as she writes that although “[i]t may travel heresy to tell this inwards some political scientific discipline as well as police line circles, but mayhap the institutions are non the fundamental problem.” This, I think, is Jack’s ultimate view, as well as I suspect it is widely shared, partly because institutional alter seems such a hopeless prospect at to the lowest degree inside the United States.  Perhaps the key phrase, though, is “central problem.” It is certainly truthful that I receive got emphasized at to the lowest degree since my 2006 book Our Undemocratic Constitution the ask to pass far to a greater extent than fourth dimension thinking of our fundamental structures (and institutions) as well as to cut back our proclivity to define “the Constitution” almost solely every bit a organization for allocating rights. This likewise leads, of course, to the almost grotesque over-emphasis on the Supreme Court as well as its decisions.  If anything, I am to a greater extent than dismayed than always past times the mode that “constitutional law” is taught inside the legal academy—or discussed past times the punditry as well as political candidates—and the concomitant unwillingness to address either the legitimacy or the practical consequences fifty-fifty of the indefensibly apportioned Senate.  (I’ll address this farther inwards my reply to Calabresi.)  

That existence said, it is undoubtedly truthful that i argue I maintain shouting into the air current is my perception that at that topographic point are inwards fact so few persons willing to engage inwards the conversation I mean value is necessary.  It is non merely that most people produce non see our political institutions every bit a “central problem”; they look non to sentiment them every bit fifty-fifty a meaning albeit peripheral problem.  As a political scientist, the terminal affair I would desire to combat is that our institutions are the sole crusade of our problems.  That is genuinely an indefensible position.  Indeed, I’m willing to concede that they may explicate only, say, 10 or at most 20% of the reasons for our malaise.  And it may likewise travel the representative that were the socio-political gild otherwise surgery well, so the costs of our institutional deficiencies would travel quite tolerable, a “cost of doing business” that could easily travel ignored inwards our everyday lives.  But nosotros should likewise travel aware that what may travel tolerable fifty-fifty most of the fourth dimension can, given the correct concatenation of circumstances, evidence fatal to our existence. I am fond of offering the analogy to the interactions of medicines.  Like most males, I receive got taken infant aspirin for many years inwards reliance on medical advice that, whatever the slight risks, it provides valuable protection amongst regard to a diverseness of potential diseases, including optic attacks.  However, I’m likewise aware that nether some specific circumstances—having hip replacement surgery, for example—one should cease taking aspirin because its role inwards thinning blood as well as hence preventing blood clots could evidence unsafe during surgery, fifty-fifty mayhap fatal.  Similarly, i should non receive got aspirin if taking a diverseness of other drugs that may likewise travel indicated for given medical conditions. So it is the representative that our institutions may on occasion travel helpful or, to a greater extent than likely, to a greater extent than frequently than non irrelevant, but it is likewise the representative that nether some circumstances, they may interact amongst other realities of the socio-political organization inwards ways that volition constitute a clear as well as introduce danger to our flourishing, as well as I patently believe that is the representative at present.  What has turned me into something of a crank is the marker to which constitutional reform is dismissed fifty-fifty every bit a possible topic of give-and-take past times such otherwise probing critics of our polity as, say, Norman Ornstein as well as Thomas Isle of Man or Stephen Levitsky as well as Daniel Ziblatt.