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The limits of "democratic constitutionalism" with an undemocratic Constitution

By Jack M. Balkin

The collection of essays that Jack and Reva have edited is, as one would expect, very good and highly worth reading. Why, though, am I less enthusiastic about the overall project, as described by Jack, than presumably typical members of the American Constitution Society (an organization that I support wholeheartedly)? The answer, as will surprise no one, is simple (and, some of you no doubt think, simplistic): Most of the issues that challenge us as a nation today have remarkably little to do with standard-form issues of "constitutional interpretation"; they are, therefore, not really amenable to litigation, including the most brilliant arguments made before our favorite justices or, for that matter, our favorite members of Congress or presidents. It has become glaringly obvious, for example, that if one wants to understand why California has become, in the words of the Economist, "The Ungovernable State," May 16-22, 2009, p. 33, the answer has almost literally nothing to do with decisions by the California Supreme Court, including its decisions on Proposition 8. Rather, it has to do with basic structures of the California constitution, plus, of course, the character of the California party system and the sheer heterogeneity of the state. I, of course, believe the same is true at the national level. If we don't get significant medical care reform of a handle on the military budget, it will because of an indefensible Constitution that gives people like Max Baucus from Montana and Daniel Inouye from Hawaii totally unmerited power in the Senate, not to mention the other pathologies of the Constitution. Unfortunately, self-styled "progressives" and devotees of "democrfatic constitutionialism," including some of my very best friends, seem unwilling to emulate the earlier generation of progressives, who challenged various parts of the Constitution and even brought about important changes (e.g., the 16-19th Amendments). Instead, we continue to believe that it our challenge is figuring out the one true way to interpret the Constitution and then hope that the "dialogue" among social movements, members of Congress, and the courts will work out for the best. I hope they're correct, but I don't share their implicit optimism about what is possible within unreformed political institutions. "Dialogue" sure as hell isn't working in California. At least in California, the situation has become sufficiently catastrophic that serious people are talking about a constitutional convention and serious change. What will it take for even one "respectable" person--I take it that Larry Sabato and I are viewed simply as academic flakes--to suggest that we might at least initiate such a conversation before catastrophe occurs instead of waiting, in Bruce Ackerman's term, for "the next attack," whether that "attack" is standard-form terrorism, a further financial meltdown, or a drastic public health emergency (not to mention the general issue of global warming and the inundation of coastal America)?

Full post as published by Balkinization on May 31, 2009 (boomark / email).