Tuesday, May 12, 2015

Democratic Dysfunction and Missing Constitutional Essentials

This paper by Howard Schweber is the sixth from the first-ever WLR Online Symposium. It comes out of the conference November 7-8, 2014 at the UW Law School on "Is it Time to Rewrite the Constitution?" presented by the Wisconsin Center for the Study of Liberal Democracy.

"Does the U.S. Constitution need to be rewritten? That question has been asked quite a lot of late. Sanford Levinson has argued for years that the American Constitution is undemocratic and profoundly flawed in its design; of late he has declared the position that the document is a positive impediment to governance. Bruce Ackerman, Peter Shane, and others propose that the design of the Constitution has failed to protect us against concentrations of executive power, permitting the emergence of a form of American government inimical to our founding ideals. Sotirios Barber places the blame less on the formal structural provisions of the constitutional text and more on American political culture, which he finds insufficient to support a robust constitutional order. In general, what unites these critiques is that they are written in response to a state of current dysfunction in our political system, which is ascribed to inadequacies in constitutional design. But there are two distinct and different conceptions of 'failure' at work in these critiques. As Mark Brandon puts it, a constitution may fail because of the breakdown of the 'failure to employ basic principles ... within a regime.' On the other hand, a constitution may be deemed a failure because it lacks constitutional essentials, fundamental features without which the claim to constitutional status is incomplete. In Giovanni Sartori’s formulation, a constitution of this kind is a 'fake.' This distinction points to an important counterargument raised by Richard Hasen. Professor Hasen argues that while the diagnoses of political dysfunction may be entirely warranted, it is a mistake to attribute those problems to a failure of the constitutional system itself. [...] In this Essay, however, I will take up Hasen’s (and others’) challenge directly. I will argue that if we focus on the question of what constitutes constitutional 'failure' solely in terms of the formally adopted text, the U.S. Constitution lacks essential elements and is therefore defective on its own terms."