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Read me whine

By Jack M. Balkin

Consider current issues of two leading ostensibly "progressive" journals, The Boston Review and the American Prospect. The former, which bills itself as "a political and literary forum" (though it doesn't appear to include a letter-to-the-editors page for its readers to participate in the forum) has, in the November/December issue, an interesting article by William Hoagland, "Constitutional Conventions." Hoagland is the author of The Whiskey Rebellion and the forthcoming Inventing American History. I have no doubt he is an interesting person. That being said, I hope that some of you will appreciate my disappointment when I actually read the piece, which is a review of the American Constitution Center in Philadelphia and an attack on same for allegedly promoting an anodyne "consensus" view of American history instead of the more Beardian class struggle that Hoagland prefers. He says that the promotion of this consensus view has helped to blind the contemporary American public to the extent to which the Constitution is anti-democratic. I 0bviously don't object to this general argument, even if I think he is at least a bit anachronistic in his view of truly "democratic" possibility in late 18th century America. What did dismay me, however egocentric it is to say so, is Hoagland's seemingly complete ignorance of the fact that there are some contemporary writers, including Dan Lazare, Robert Dahl, Larry Sabato, and myself, who are far more interested in stirring a debate about the contemporary inadequacies of the Constitution than going over, once more, whether the Constitutional Convention was a collection of demigods or of militant opponents of the kind of democracy represented by the Shays Rebellion and, later, the Whiskey Rebellion. Perhaps trashing the Framers is thought to be necessary condition for criticizing the Constitution today, though I don't think so. One can say they did the best they could for their time and provided us with the example, which we've chosen to ignore, of responding to new exigencies with truly radical thought. But, hey, if returning to Beard would generate more contemporary discussion of the Constitution, that's fine.

I'd be considerably happier, of course, if the Boston Review had taken any cognizance of either Sabato's or my book, both of which I continue to believe have something to say to people interested in achieving a truly "progressive politics."

But my disappointment with the Boston Review (which I will continue to subscribe to, if for no other reason than Alan Stone's always fascinating movie reviews) is as nothing compared with my reaction to the issue of The Ameican Prospect (which I also, of course, subscribe to) that arrived in today's mail. It includes a 15-page special section on "Revitalizing Democracy," financed by grants of the Rockefeller Brothers Fund, the Carnegie Corporation of New York, and The Joyce Foundation, with contributions by a number of first-rate authors, including Balkinization's sometime contributor (and friend) Heather Gerken.

There is, alas, not a word in the fifteen pages that suggests that anyone interested in "revitalizing democracy" might actually be looking at the Constitution and asking whether it works for or against achieving the goals that the American Prospect sets forth for America (and which I share). Again, I, and I assume Sabato, would be happier if critics grappled with our arguments and then disagreed with them rather than pretend that no such arguments exist.

What is dismayingly typical is the first piece, by Bob Edgar, idenified as "the president and CEO of Common Cause, who offers four suggestions. The first two involve good-government electoral reform, that I certainly endorse, but says nothing about the anti-democratic electoral college. The fourth suggestion is to "restore the Constituion":

The new Congress and administration must work to restore the rule of law, the separation of powers, and the respect for human rights and the Constitution. We need more than just a government that enacts sound policies. We need a democracy capable of building broad and resilient support for the changes, sacrifices, and disruptions that are inevitable. And we need to rebuild the structures of democracy that hold power accountable, especially for the poor, the powerless, and the voiceless.

With all due respect (a dead rhetorical giveaway), the foundations should sue for their money back if this is all he can come up with. I certainly agree that we should "respect" the parts of the Constitution that are worthy of our respect. But does it occur to Mr. Edgar that there may be some parts of the Constitution that are not worthy of respect precisely because they reinforce the lack of accountability and help to assure that the poor, the powerless, and the voiceless will continue to be systematically screwed by a system that, as Hoagland well points out, wasn't constructed with their interests in mind in the first place? Anyone interested in assuring better accountability, for example, should look at how "the opposition parties" are treated in other constitutional systems, including Germany. Rick Pildes and Daryl (no relation) Levinson wrote a brilliant article several years ago in the Harvard Law Review on "the separation of parties, no powers." It should be at the heart of contemporary public discussion.

Larry Marx, the executive director of the Donor Collaborative of Wisconsin, has a three page article calling for "a broader definintion of democracy," with the subhead "Small reforms won't bring the system-wide change we need." Amen, brother. But it turns out that Marx, too, doesn't seem to contemplate even the possibility that we might look at the Constitution if we want "system-wide change we need." Of course, the reason may be that Article V dooms us to failure with regard to any such efforts, so it's simply easier to continue with small- or medium-size reforms (many of them, I hasten to add, that are fine ideas) than even to discuss any more ambitious alternatives. This repression of any radical thought is one of the reasons I have come truly to despise Article V, since it's pernicious consequences go well beyond simply preventing some changes I might support (and, to be sure, sometimes stopping changes I oppose).

Forgive me for the self-indulgence of this posting. But it really does rankle to watch one's erstwhile political allies, committed to all sorts of good goals, whether it's further "democratization" of American politics or helping the poor and the currently voiceless, simply maintain a truly willful ignorance to the possibility that our Constitution is at least as much the problem as the solution to the ills they all identify. If they set out the limits of "change we can believe in," we really are doomed, as argued in an extremely interesting and troubling review elsewhere in that issue of The American Prospect, by Chris Mooney, of two books on global warming and the seeming incapacity of our political system (or, perhaps, all political systems around the world as well) to respond adequately and begin engaging in the changes that are necessary.

Full post as published by Balkinization on December 29, 2008 (boomark / email).