OPEN UNIVERSITY JULY 20, 2007
By Sanford Levinson
I'm about to go off to New Zealand, one of the last countries in the world not to have a written constitution and to be firmly committed to parliamentary sovereignty (though some judges are reasonably forceful in enforcing the relatively new Bill of Rights (that, however, explicitly denies the power of what we call "judicial review," i.e., the ability of courts to invalidate legislation). I will be teaching a seminar on constitutional design, and I will be interested in how the New Zealand students respond to a number of basic issues that confront anyone interested in the subject. In any event, I won't be posting anything for the next three weeks.
One inevitable question is whether any sane country, faced with drafting a constitution, would emulate the United States Constitution. Not surprisingly, I believe the answer is a firm no. I've been discussing a number of constitutional defects over the past months since I've joined the Open University "faculty." Alas, the last couple of weeks reveal ever more why the only proper response to the United States Constitution, by New Zealand, Iraq, or any other country, is to look for another model (Germany, Spain, or South Africa are among the most likely candidates) as quickly as possible. Consider the following:
Although many countries have bicameral systems, relatively few give an absolute veto to each house relative to blocking legislation. Many systems have a way of cutting off gridlock, either by giving ultimate power to a supermajority in the more popular house or through presidential proclamation that assigns such power to the more popular house. Not only do we have a system geared to gridlock, but, of course, an already indefensibly apportioned Senate has also seen fit to adopt a 60-vote rule for almost all legislation, which prevents bringing proposals passed by the House even to a vote. (For the record, incidentally, I argued a couple of years ago that Democrats should welcome the "nuclear option" vis-a-vis judicial appointments, since getting rid of the filibuster for such appointments is the only way of guaranteeing that a Democratic president, even with a Democratic Senate, would actually be able to make solidly liberal appointments. With typical ineptitude, Democrats "won" on the filibuster and acquiesced as well in some terrible appointments to the circuit courts and, of course, blithely confirmed Roberts and Alito to the Supreme Court. Does anyone want to bet on whether Republicans will be so acquiescent when their turn comes in 2009 to accept the arrival of a new regime in town?)
But, of course, we learn, almost every week, about the extent to which the Constitution has managed to give us the equivalent of a dictator. The fact that the U.S. President is no Hitler, Stalin, Mussolini, or even Franco, should not blind us to the fact that he makes remarkably important decisions without the slightest accountability to the American people, which is one definition of dictatorship. (The fact that he was elected in 2004 may, for most Americans, make him a "legitimate dictator," but past elections have nothing at all to do with future accountability.) We know that he is impervious, with the help of Republican allies in the Senate, of course, to any congressional participation in deciding what to do with regard to what Timothy Garton Ash in the Los Angeles Times, "[l]ooking back over a quarter of a century of chronicling current affairs," describes as the most "comprehensive and avoidable man-made disaster" of the period.
Even Nikita Khrushchev was forced out of his position following the humiliation of the Cuban Missile Crisis, but we're stuck with George W. Bush (and, even more frighteningly, Dick Cheney) for another 545 or so days. Iraq is the most dramatic example of our constitutional dictatorship. But consider also a Washington Post story, detailing George Bush's intention to veto the renewal of what the Post describes as "a popular program that provides health coverage to poor children," because the President is said to believe "that expanding the program would enlarge the role of the federal government at the expense of private insurance." The bill has the support of a solid majority, including Republicans, in both houses, but, of course, the veto will probably stand up, as 95% do in our peculiar system, because all Bush has to do to prevail is to find 1/3+1 in one of the two Houses. Were we in France, we might look forward to mass demonstrations that would force a change in policy, but, of course, we are far more supine than the French, who actually believe in the popular sovereignty that we only proclaim in the Preamble to our decidedly undemocratic Constitution. (I note a late-breaking development, courtesy of the New York Times, which reports that the Senate committee, by a vote of 17-4, has approved the legislation. This is obviously well beyond the 2/3 needed to override a veto, though one doesn't know, of course, if the committee membership is truly representative of all Senate Republicans. And, equally obviously, we don't know if enough House Republicans will be willing to "defy their President" should he carry out the veto threat in spite of the revolt by members of his own party. But the very nature of a dictatorship, of course, is that it's exclusively the President's decision to make.)
As I've said before, I think we're much too large and diverse a country to emulate the New Zealand system of a single-house parliamentary system without judicial review. But I must say I'm looking forward to spending some time in a country where political leaders can be held accountable for the disasters they create.