Our scholars debated for months, mostly over Zoom and via email, about the various aspects of this constitution. The Zoom sessions were recorded, and the emails sit in all of our inboxes. While it would be impossible to reproduce here the full extent of these deliberations, we offer here a few excerpts just to give readers a flavor of what these stimulating deliberations and debates were like.
On the Preamble
Miguel Schor: The question I have is whether the preamble should contain second-generation rights (perhaps using FDR’s 1944 State of the Union as a template) and third-generation rights (I’m thinking primarily of climate change). The United States is an outlier in that there are real constitutional and legal questions [over] whether Congress has the authority to implement such rights. Putting these rights in the preamble would help put those questions to rest; the rest is up to the political branches.
We obviously could put these rights at the back end of the constitution, and then we’ll argue over whether the judiciary should be able to enforce them.
But I like the idea of putting them at the front end. The original preamble points to an important point about democratic emergence, which is that elites gave up some power in exchange for a state that could protect their interests. Democratic maintenance in the twenty-first century likely hinges on providing a degree of security for ordinary citizens as well.
Ron Krotoszynski: Honestly, I think the South African drafters got it right [with their preamble]. I would suggest something that melds the original U.S. preamble with something like [theirs]. I particularly like the “heal the divisions” and “lay the foundations” lines. [Note: The preamble to the South African Constitution mentions healing the divisions of the past and laying the foundations for “a democratic and open society.”]
On the question of specificity of the groups that have suffered grievous wrongs. I agree entirely that human chattel slavery and the pogrom against Native Americans stand alone as the worst injustices practiced in the United States. However, it bears noting that thousands upon thousands of Chinese immigrant laborers, who built Leland Stanford’s railroad, hardly received the blessings of liberty. Again, I’m not saying that Asian laborers building the railroads suffered the equivalent of the pogrom against Native Americans or the institutionalized practice of human chattel slavery. But it certainly constituted a form of peonage. I would also note that South Africa’s preamble does not feature specificity, even as it directly acknowledges the horrific past of colonization and apartheid coupled with “Herrenvolk Democracy.” I simply raise this observation as an alternative approach—an approach adopted in a society very much like ours, inasmuch as it faces the same kinds of problems, involving racial injustice and gross disparities in income, wealth, and opportunity.
Julie Suk: I agree with those inclined to ditch the eighteenth century preamble and to take a more modern approach along the lines of South Africa’s. Even if we stick with some of the language in the U.S. preamble worth affirming, such as “We the people,” we should lose the eighteenth century convention of capitalizing nouns (“We the People, in order to form a more perfect Union,” etc.). It fell out of favor in the nineteenth century, and I would not want its preservation to signal any nostalgia for the days when “We the People” didn’t include anyone other than white men as full legal persons and citizens.
I think South Africa’s preamble is a great place to start, and I would like to suggest, as an additional model, the preamble to Iceland’s crowdsourced constitution proposed in 2011.
Mila Versteeg: I think second- and third-generation rights should go into the document, but not into the preamble. After all, we’d want these rights to be enforceable (at least I would want them to be), and not clear they will be if enshrined in the preamble. I agree there’s case to be made for referencing human dignity in the preamble.
As a comparativist, I obviously think it is okay to look at foreign models, but I would also keep some of the iconic language from the old constitution (like “we the people”). After all, that document has become a civil religion for many—so it might be easier to get buy-in for a new constitution if it retains some of the old language. More generally, it should ultimately reflect some of the things more uniquely American—so, in that sense, I think it might be good symbolically to use some language from FDR.
I agree with those who said that this should also be a forward-looking preamble, for the twenty-first century, and wondered if we should mention some of the twenty-first century challenges, like the importance of combating climate change (although some more general language like “respect for the earth” as proposed by Julie could also work).
On Voting Methods
Mark Tushnet: If we’re motivated at least in part by the desire to get out of the current [polarization] mess, I wonder whether we’ve put on the table anything that changes political incentives in a way that encourages the stable existence of a principled center-right legislative party. I take it that the argument for abandoning first-past-the-post (FPTP) for the presidency is that most alternatives encourage candidates to move toward the center. But if I recall correctly, Downsian models says that FPTP does the same. In any event, what will work at the congressional district level?
This is of course in tension with my impatience with proponents of ideological centrism—though I do worry about the possibility that we’ll design things in a way that leads Democrats to move toward the center without inducing Republicans to do so as well. This in turn might have something to do with my nervousness about constitutionalizing a long list of “progressive” rights, which I suppose will come up tomorrow. The “model” of concern here is the story, not necessarily accurate, that Roe led Democrats to relax on choice issues until it was too late. Maybe what we should strive for is a system that gives incentives to both sides to mobilize politically (maximally, not merely incidentally) about the matters that most concern them.
Miguel Schor: The fear that the right had that it could not win electorally was a real problem in democratic breakdown in Latin America in the era of mass democracy. Given economic disparities in the region, the left threatened to be the dominant political force. Repression and political violence were used to prevent that from occurring.
I think the voting rules we discussed the other day will make it more likely that a moderate and responsible Republican Party will emerge. Some evidence for that claim can be found in Lisa Murkowski’s critique of Trump (and the GOP) following Alaska’s decision to adopt ranked choice voting.
Victoria Nourse: Structure is not an abstraction, it is a function of incentives. Steve Griffin rightfully focused us on trust and increasing trust in government on Monday. But trustworthiness can be structured if one understands incentives, as he suggested.
So I am resending the Murkowski and ranked-choice voting story [from The Washington Post]. Those who wonder why I (a scholar of Congress/separation of powers) have been so insistent on focusing on specifying voting procedures should take a look.
So, too, I suggest those thinking of having members of Congress sit in the executive branch think of the incentives that could create. Madison thought the executive would collapse into the Congress if there were no “incompatibility” (the “incompatibility” clause is the least known but most structurally important clause in American separation of powers). He also thought that would lead to an entirely disempowered executive branch. For those who don’t like Presidents you might like that at first blush, but I ask you to imagine what will happen in such a system, given the assumption of self-interested politicians who seek to increase their own power and give outsized benefits to their constituents. It may well have a destabilizing effect on Congress—creating a kind of congressional aristocracy—as a select set of Cabinet members end up preferring themselves and their voters in applying the law. Executive and legislative unity make sense if there are strong parties and party unity keeps them acting together, but what if there is none?
Miguel Schor: I think it’s useful to disaggregate two somewhat overlapping questions: (1) the number of parties and their relationship to institutional structures and (2) electoral rules.
First, there is good historical evidence to think that the combination of multi-party systems and presidentialism is a poor one. You are likely to end up with gridlock since parties in a presidential system lack the incentives to bargain that they have in a parliamentary system where they can form a government. This can be dealt with by giving the President the authority to introduce legislation, though. In the republics of Latin America, this has been dealt with to some extent by the growth of executive decree powers but a system that enables the President to introduce legislation is preferable, I think.
The other potential downside to a multi-party system is you may end up with extreme parties with a questionable commitment to democracy. That can obviously occur in a two-party system, as we are seeing with the GOP civil war, but that is a result of the combination of primary and election rules that have rewarded extremists coupled with a post-truth speech environment. Ranked choice voting will deal with the former but not the latter problem . . .
Second, so if we want a two-party system, we would stick with the system we have of first-past-the-post and single-member districts and trust Duverger’s Law to continue to hold. I think that democratic ship has sailed though, given how polarized our politics has become. My guess is that ranked choice voting, combined with executive authority to introduce legislation, is likely to ameliorate the worst aspects of combining a multi-party system with presidentialism.
On the Senate
Levinson: I attach links to two really interesting op-eds in today’s Post and Times, by E.J. Dionne and Charles Blow. Dionne correctly says, in effect, that any prospects for progressive legislation are doomed unless the filibuster is eliminated post-haste. Blow, on the other hand, notes that by 2040, 70 percent of the Senate’s votes will be in the hands of the 35 states with 30 percent of the national population. So he suggests that Republicans thinking of the long game will be delighted if Democrats get rid of the filibuster, because that will work in their favor once the Senate inevitably shifts back to the GOP because of the malapportionment of the institution itself.
For me, that only confirms the belief that we need to blow up the present Senate. [Our] draft makes an effort, but giving California 12 senators to Wyoming’s one still gives Wyoming approximately five times the voting power it would be entitled to in a one-person/one-vote national system. I’d be interested to know how the [working group] decided on its proposal. It certainly makes the Senate less grotesquely imbalanced than it is now, but it just as certainly leaves us urbanites in the hands of the smaller states and their disproportionately white, rural, and religious populations.
As I’ve repeatedly said, my hatred of the present Senate doesn’t extend to bicameralism per se. So for me the central question is what kind of Senate might be actually useful for the country. This is the area in which I’m most willing to be “visionary” and not particularly bound by pragmatic politics, at least so long as we come up with a notion of the Senate that in fact makes sense to us. But what exactly is that?
Mark Tushnet: I would think that the cleanest thing to do is to give the Senate (however composed) only a suspensive veto power, “override-able” by a majority vote in the House. The more malapportioned the Senate is, the shorter the suspension period should be (e.g., with the current apportionment, an override vote can be scheduled as early as 90 days after the veto; with the proposed apportionment, perhaps 120 days; with population-based apportionment, I’d think seriously about saying no override until there’s an intervening election).
Ron Krotoszynski: Surely the easiest fix is to defang the Senate by renormalizing it along the lines of the House of Lords, the Senate of Canada, and the House of Councillors in Japan (this body replaced the House of Peers after World War II).
Give the Senate the power to delay a House bill going to the President with an immediate override by a two-thirds majority vote in the House and an override in the next session by a simple majority vote in the House (with a quorum present in both cases, not an absolute two-thirds or majority).
Keep the Senate at two per state. We might want to think about statehood for D.C. and Puerto Rico as well. (Why not? If we’re playing God, let’s play God.) Territories where citizens have no representation cannot be justified. Maybe even a third new state for Pacific Islands. Or simply give territories or groups of them members of the Senate. I do think we need to think about citizens who cannot vote for a House member or for President. I suppose a direct national election solves the voting for President problem. It does not solve the lack of representation by a voting member of the House.
If the Senate can only delay or propose amendments to legislation enacted by the House, it’s no more inconsistent with democratic self-government than the contemporary House of Lords.
Jeffrey Tulis: As the Anti-Federalists rightly pointed out, the Great Compromise was not actually the compromise people imagined. People imagined that states qua states would be represented. But as the Antifeds argued, there was no power of instruction, so legislatures did not actually control their purported representatives. The representatives thus saw themselves as representing the people of their states in either a direct or a Burkean way well before they were directly elected. So from the beginning, the big problem was the one Madison felt strongly about: disproportionate representation.
I take the point that Ron raised that the House of Lords has been made to work within a democracy—but it remains an aristocratic institution. The American Senate from the beginning was an attempt to get the advantages of such an institution without the social base/source of an aristocracy. That is what I take Sandy’s endorsement of bi-cameralism to mean. A democratic surrogate for a House of Lords.
Mark Tushnet’s suggestions regarding the mechanisms by which laws are passed, referred back to the House and so forth seem to me to be sensible and democratic ways to achieve the benefits of bicameralism and might be combined (or not) with a body that is more proportioned to population.
On the Supreme Court
Linda Greenhouse: I heard an interesting talk by Laura Weinrib the other day. She favors a super-majority requirement for invalidating federal legislation but points out that such a requirement need not be stated explicitly if we follow the model of the Framers and have an even number of justices on the court (they started with six, as everyone knows). Recall that the Court’s 2015 term, with [Antonin] Scalia having died before the heavy-lifting part of the term, was surprisingly consensual because the eight justices had to find a 5-3 majority or end up with a meaningless tie. So if people find the supermajority idea appealing, one idea might be to specify not the total number of justices, but to say it has to be an even number. Of course, this would throw off the impact of the 18-year term because there would not be two vacancies per four-year presidential term, but there’s nothing sacred about 18 years—it could be more, or less.
Jamal Greene: Linda’s very sensible suggestion prompts me to chime in that one would perhaps want to pair an even number of justices with either a jurisdictional limit or an automatic stay on lower court invalidation of federal statutes.
Linda Greenhouse: Jamal, interesting. I suppose an automatic stay would have to be paired with mandatory Supreme Court review of a lower court’s invalidation of a federal statute? Or else a denial of cert would dissolve the stay and give the lower courts the last word. I’m guessing this isn’t what you want, or maybe it is.
Jamal Greene: I assume cert would be granted if a federal statute were invalidated unless there was a virtual consensus on the Court that the statute was invalid (and probably even then). But you’re right that a stay still doesn’t solve the problem of a lower court invalidating the statute and then SCOTUS being equally divided. There might need to be a bespoke rule for what happens when an equally divided Court confronts an invalidated federal law.
On Gun Rights
Sanford Levinson: I hesitate to mention this, but . . . In thinking about the likely reaction to our various audacities, I would not be at all surprised if the most vigorous involved our ignoring the issue of guns. I’m willing to defend whatever our collective decision is. An earlier draft recognized gun rights and said that all reasonable regulations would be acceptable. Gun buffs would obviously find that weak, while many (including many of you, no doubt) would prefer no legitimation at all of a right to keep and bear arms. My own preference would be to go back to what we once had.
This is scarcely the most important issue still before us. But it may be almost literally the first thing our likely critics will notice. And our likely friends, politically, will no doubt be asked if they agree with our complete elimination of guns as an object of rights. Certainly a lot of working class people (largely males, of course) whom we’re concerned about in fact support gun rights (of some sort).
Robert Tsai: I’m glad Sandy brought this up, as it’s been on my mind as well. I personally hate gun culture. My first-order preference might be to say nothing at all and leave it entirely up to state regulation, but I worry that this would discredit our endeavor in the eyes of too many.
I’d be content in the alternative with something along the lines of what Sandy describes, on the theory that gun rights enthusiasts will not have that excuse to ignore the rest of our work. In addition to ensuring that reasonable regulations may be had, why not also specifically protect hunting and home defense, and thus by omission take off the table the vague anti-tyranny justification?
Dan Lazare: I have no idea what Robert means by “gun culture.” But I think there’s no more of a right to keep and bear arms than to ride a bicycle. I believe that government should facilitate healthful activities like hunting and fishing, target shooting, gun safety, and the like, but at the same time should strictly subordinate guns to the needs of democracy. Like everything else, they should be regulated for the benefit of society as a whole. The idea of individuals arming themselves against “big gummint” is taking on fascist overtones in our society and should be strongly opposed.
As to the related issue of home protection and self-defense, nowhere does the present Constitution make government responsible for individual health and safety. Policing is strictly a state prerogative. This should be corrected so as to make crystal clear that safety and security can only be obtained through society, not in opposition to it.