In Search of Goldilocks Points

First, I am extremely grateful for the thoughtful responses to my essay (and to the Cato Institute offering all of us this rich opportunity). I hope the following comments further a productive conversation not only among ourselves, but among the readers as well.

When I went to graduate school more than a half century ago, political science was generally dominated by those who emphasized the importance of “political culture” as against the centrality of political institutions. What this boiled down to, in many ways, was the view that constitutional forms really did not matter very much, if at all; a country blessed with what was called the right “civic culture” could operate effectively under practically any set of institutions. Concomitantly, a severely divided country probably could not find genuine stability whatever set of institutions might be proposed. Although, for a number of reasons, I think it is safe to say that contemporary political scientists pay more attention to the importance of institutional structures, it remains wise not to place complete faith in what has come to be called “constitutional design.” Culture is important.

I take it this is the underlying theme of Jacob Levy’s comments. It is surely the case that if one looks around the world, there are few truly encouraging examples of political institutions that are widely supported by relatively contented publics. Parliamentary regimes are faced with many of the same practical problems of governance as our own presidentialist one in terms of publics who feel increasingly alienated from the elites dominating their political systems. I have written about “our undemocratic Constitution”; a standard trope of reference to the European Union involves its purported “democratic deficit” that makes it impossible to accord genuine legitimacy to decisions made in the collective name of the EU.

And, of course, the United States is not currently threatened by significant secessionist movements, unlike the case in such fellow NATO members as Canada, Great Britain, Spain, and Belgium, let alone many other parts of the world. So even if it is correct to be depressed when one looks at contemporary American politics, it may be a mistake to emphasize the importance of our formal constitutional order. It is, as was suggested by many a half-century ago, simply epiphenomenal; the really important determinants of a polity lie in society, the economy, or, perhaps, the threats and challenges posed by the international system, including globalization. (Perhaps Marx was right after all!)

So Levy may be correct to chide me for engaging in a certain form of American exceptionalism, even if, in this case, it is critical rather than celebratory. If the dysfunctionalities and discontents are world-wide phenomena, then this necessarily suggests that my emphasis on the specific modalities of the American political system may be misplaced. Let me emphasize that I do not view the American constitutional system as a total explanation for our present problems, just as, incidentally, I am irritated by those who give undue credit to the Constitution for the undoubtedly impressive aspects of our history since its adoption in 1788. Correlation is not causation, and causal analysis is indeed immensely difficult. As a political scientist, I would be surprised if, say, the Constitution explained even 15–20% of the difficulties facing the polity at present. Moreover, we must be sensitive to what I would describe as interaction effects. It is almost certainly the case that the specific political institutions established by the Constitution take on additional importance, again for good and for ill, depending on what else might be occurring throughout the system. As with otherwise benevolent drugs, which can become potentially fatal if taken in the wrong combinations, so can given political institutions take on ominous possibilities when other symptoms present themselves in the body politic. Still, even far more empirically oriented political scientists than I can scarcely agree on the actual weight to be placed on specific institutional structures in given circumstances. We are all offering our “best guesses” rather than truly demonstrable evidence as to the costs or benefits of, say, the presidential veto or various forms of bicameralism.

Richard Albert seems in substantial agreement with the view that the United States Constitution is too hard to amend, and he offers an audacious proposal that certainly seems to exemplify the temptations of going beyond what most people would regard as the limits of the existing constitutional order in order to fulfill the instrumental purposes set out by the Preamble. His proposal that presidents should be able to supplant Congress as the proposer of constitutional change is similar to a suggestion offered by Yale Professor Bruce Ackerman, but Ackerman seemed to concede that it would require a formal constitutional amendment to legitimize such a change. Albert, on the other hand, seems more willing to accept a coup de main by an innovative president who would throw him or herself on what Publius in Federalist 40 called the “approbation of the people.” If a proposal were accepted by conventions of the states—and, incidentally, how many conventions would have to agree?—then that in itself would serve to legitimize the “illegal” process by which the proposal was made in the first place.

Beyond the obvious tensions produced by its seeming rejection of the requirements set out by Article V is the fact that presidents are unlikely to propose amendments that would weaken presidential authority itself. If one believes, as I have come to, that the presidential veto makes us far too much of a tricameral political system—or if one agree swith Gene Healy and others at the Cato Institute that presidents have taken on dangerously unilateral power with regard to a host of issues—then it seems almost quixotic to look to presidents for suitable reform.

Neither Levy nor Albert seems eager to offer a genuinely affirmative defense of the U.S. Constitution. Ginsburg, on the other hand, appears to me quintessentially American in apparently fearing above all the “tyranny of the majority” and therefore seeing far more merit than I do in the Madisonian system that is explicitly designed to make majority rule, practically speaking, as difficult to attain as is reasonably possible. (It used to be even more difficult, before, say, the 15th, 17th, and 19th amendments, but none of those truly affected the number of veto points that make significant legislative innovation more difficult than is the case in almost any parliamentary system.) It would be foolish to deny the reality of majority tyranny; contemporary developments in Hungary and Poland especially should frighten anyone committed to liberal democracy or constitutionalism.

Perhaps, though, we could productively discuss what the “right number” of veto points is in a given polity, the number that I sometimes label to my students as the “Goldilocks point.” I do not in fact support unalloyed majority rule, where a majority at a single moment in time is privileged to do whatever it wants—the definition of parliamentary supremacy offered centuries ago by Blackstone. I, too, am American enough to want constraints. I have no desire for the United States, with its 320 million people spread across millions of square miles, to emulate the systems of, say, Israel or New Zealand, where a single Knesset or House of Representatives has almost limitless power. That being said, I do believe we have overinvested, so to speak, in restraints, with the consequence that ever-increasing numbers of Americans are justifiably alienated from the formal political system, including its electoral dimension, not only because of phenomena like gerrymandering and voter suppression, but also because at the national level—unlike the case in many American states—elections in fact decide far less than the naïve electorate might suppose. Thus the fury of the Republican right that their impressive victory in 2014 has turned out to be relatively inconsequential because the President can obviously veto any legislation (assuming it can get through Democratic filibusters in the Senate); as noted in my original posting, should Hillary Clinton win the next election, leftish voters will be equally frustrated to realize that there is no practical likelihood that she will be able to accomplish her domestic agenda insofar as it requires any congressional authorization rather than pushing the envelope of assertions of executive authority.  

Whether or not one must throw out the entire Madisonian baby is surely open to genuine debate. And the nature of specific “Goldilocks points” is equally open to hearty argument. This is why I continue to support a new constitutional convention, so that a productive debate can actually take place, ideally with the degree of courtesy and attention to competing arguments as is manifested in this particular exchange.

Also from this issue

Lead Essay

  • Sanford Levinson proposes a typology of the constitutional crisis. Some crises, he argues, stem from political actors disregarding the written constitution. Others, he says, are the product of too much adhesion to the written constitution, even in circumstances in which the written text proves self-destructive. He reviews several incidents of each from American history, and he closes by suggesting, provocatively, that the U.S. Constitution may be undergoing a crisis even today.

Response Essays

  • Presidentialist systems are empirically unstable, and parliamentary systems seem superior in this regard, writes Jacob T. Levy. Not only that, but presidentialism encourages the false belief that the president at any given time represents a unified national will. These faults, though, are not indicative of a constitutional crisis particular to United States. All liberal democracies have been experiencing a crisis of confidence in recent years, at least since the end of the post–Cold War euphoria. Confidence in representative institutions has recently been low in general, not just in presidentialist systems. The role of American constitutional design in all of this would appear to be incidental.

  • Richard Albert notes that the U.S. Constitution has become practically unamendable: Congress is simply too divided to agree with the supermajority needed to report out an amendment, and the public appears permanently disinclined to make use of Article V’s provision for an amending convention. As a result, changes to the U.S. constitution have been taking place de facto, but almost never de jure; interpretations today do the work that amendments should probably do, and the potential for constitutional crisis grows. Albert closes with a bold proposal: Perhaps Article V does not provide an exhaustive list of methods by which the Constitution might be amended.

  • The slowness of the U.S. Constitution is a feature, not a bug, says Tom Ginsburg. It shields us from politically motivated, short-term thinking in our constitutional design. The alternative, a constitution that is too easy to change, is if anything more likely to provoke crises, as have recently happened in Hungary and Poland. Madisonian constitutional design lowers the stakes of politics, meaning that a president Trump or a president Sanders will be less able to do anything truly damaging. Even in a world of rapidly changing technology, Ginsburg says, we still would have to calibrate the degree of difficulty in constitutional change to match the degree of change needed to suit the situation, and this is likely a hopeless task. Perhaps some constant low-level degree of constitutional tension is the only alternative, and that may not be so bad after all.