OPEN UNIVERSITY FEBRUARY 6, 2007
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by Sanford Levinson
Would you gladly drive a car with slick tires and failing brakes simply because you haven't driven over a cliff yet? Or, as much to the point, would you give your children such a car? One suspects that the answer to the latter question is no, even if one might be tempted to take certain risks with regard to one's own life. Consider also the issuance by the U.S. government this past week of potential responses to a threatened repetition of the disastrous flu pandemic of 1918 (which killed almost as many U.S. soldiers as died in World War I itself). Among the suggested measures, should we be faced with a "Category 5" pandemic (the terminology is taken from the ratings of hurricane strengths, and we should remember that Katrina was somewhere between 3-4 when it hit New Orleans), are that urban schools should close for up to three months, public events like ball games and even movies should be cancelled, and working hours should be staggered, assuming that persons would necessarily be allowed to congregate in non-essential places of employment at all. One expects vigorous discussion to ensue about some of the specifics, but most Americans (and others, I dare say) believe that this represents a serious effort by the United States imaginatively to confront the possibility of a dire threat. Even if the specific suggestions are ultimately rejected in favor of others, no one can deny that we will have been well served by a serious public discussion of the best way to respond to a foreseeable potential disaster.
Risk analysis, though, is scarcely uncomplicated. My friend and Open University colleague Cass Sunstein has done much valuable writing on various problems associated with risk analysis, particularly in a fine book published in 2005, Laws of Fear: Beyond the Precautionary Principle, which warned, among other things, against certain cognitive biases that often mar risk analyses. Thus he noted, and lamented, "the availability heuristic," which leads us to overestimate considerably the probability of certain risks precisely because they cognitively become "available" to us. A current example is the almost undoubtedly exaggerated risk of being injured in a terrorist incident, even if one lives in New York, Madrid, London, or any world capital. It is not, obviously, that there is no risk; rather, we tend considerably to exaggerate its possibility, even as we underestimate the probability of less publicized events. Sunstein discusses such examples as the fear that one's child will be kidnapped by a stranger, that terrorists will attack subways, or that a "shoe bomber" will threaten an airplane. All too often the response to such events or even their possibility, as with "shoe bombings," will be along the line that "we must do whatever it takes to eliminate the dreaded risk." Sunstein offers a scathing critique of such responses; among other things, they often avoid discussing the risks of the measures taken to suppress the original risk. It is, for example, easy enough to note that even if the Bush administration were correct in its perception of the risks posed by Saddam Hussein (and note that I use the subjunctive), its subsequent policies were fatally flawed by a reliance on "best-case" predictions with regard to our own policies that criminally ignored the consequences of anything going wrong, let alone "failure."
So where is this message going? As anyone familiar with my recent work knows, I am close to obsessed with the extent to which the United States Constitution itself poses significant risks to the United States with regard to what I call the "hard-wired" provisions of the document. Most important, for present purposes, is the fixed-term presidency, which means that George W. Bush, who is a strong candidate for the most truly disastrous president in American history, will be in the White House until January 20, 2009. It is this constitutional reality--for everyone concedes that he is not going to be impeached (and I have an article in last week's Nation arguing against an impeachment strategy)--that leads pundits, editorial writers, and anguished authors of letters to the editor all to adopt a rhetoric more suitable to a dictatorship than the "Republican form of Government" acknowledged in the Constitution. The general trope of such writings is that the "Great Decider" will not take us further down the road to disaster, death, and destruction.
If we can seriously discuss radical transformations in the way we live our lives, should a Category 5 pandemic face us, or adjust our behavior when flying because of the miniscule risk of "shoe bombings," then why are we incapable of having a serious discussion about the risks generated by our Constitution? One might think that the "availability heuristic" identified by Sunstein would heighten public concern about the risks of being stuck with such a consummate incompetent, even if we accept the fact that we are indeed condemned to live out the next 720 days under the "leadership" of George W. Bush. We might, for example, discuss the merits of emulating sensible (and stable and democratic) countries around the world that have procedures for a "vote of no confidence" in appropriate circumstances. (And does anyone seriously doubt that if such a vote were available at present, with the guaranteed replacement of Bush by another Republican chosen, say, by the Republican congressional caucus, Bush would be moving out of the White House within a month? Ironically, no sane person would cast such a vote if the replacement was Vice President Dick Cheney, which reveals yet another problem with the Constitution, the very office of the vice presidency. That, of course, could be the subject of a future posting.)
It's possible, of course, that no such conversation is occurring because I am simply wrong in my estimation of the Bush presidency. Perhaps I exemplify the "availability heuristic" and exaggerate the consequences of the Bush presidency instead of focusing, for example, on the potential risks of a flu pandemic or avian flu. Or perhaps most people, after reflection, would decide that the United States is in fact well served by a fixed-term presidency. Thus it might be irrelevant that past presidents might have helped to generate civil war (James Buchanan) or that George W. Bush is currently putting the lives of millions at risk through a reckless foreign and military policy coupled with the abject unwillingness to respond seriously to global warming. Otherwise, the lack of such a conversation, for me at least, is evidence of an ostrich-like denial of risk.
To be sure, any such discussion will require acknowledging that our Constitution is significantly flawed and that our Founders weren't perfect. The latter should be not problem inasmuch as one of the most attractive attributes of most of the Founders was their openness to the "lessons of experience," an openness that is completely absent in those who wrap themselves in the mantle of a presumptively all-wise Madison or Hamilton, etc. Even more to the point is the reality that earlier generations, less caught up in a cult of constitutional veneration, recognized such constitutional flaws as the accommodation with slavery; the denial (by states) of the vote to African Americans and women; the selection of senators by state legislators; and the almost lunatic feature of the Constitution (even if, arguably, if made sense in 1787) by which a newly elected Congress would not meet until December of the year following their election, which meant, among other things, that Abraham Lincoln had no Congress in Washington during the monumental first four months of his presidency. Some would say that FDR took advantage of a constitutional defect by running for more than two terms. The 22nd Amendment obviously came too late to affect FDR, and it explicitly exempted the incumbent Harry Truman from its limit, but it has obviously had significant affect on American politics since then, perhaps explaining why Bill Clinton is not president even as I write! So even if a 28th Amendment would be inapplicable to George W. Bush, this would be a better country if future Americans (and people around the world) when faced with an incompetent and dangerous president could do something about it instead of being forced to identify with a figure out of an Edgar Allen Poe story who feels the walls ever enclosing with no escape.
Is the Bush presidency really less threatening than the possibility of avian flu? Those who actually like and admire the Bush presidency can attack my basic presupposition. But the real question is why those who share (even much of) my view of the Bush presidency are so complacent in trying to protect their children, even if not themselves, against the possibility of its recurrence in the future.
14 comments
"miniscule risk" Perhaps if your wife was in Madrid heading for Atocha the morning of the attack you would reconsider the threat as "miniscule". As to the rest of your analysis, I'm affraid that in your Manichean mood (either you're pro-Bush or against Bush), you're throwing the baby out with the bathwater. And yes 1787 has flaws and Madison has flaws. But to understand them correctly you would have to study the context in which the Constitution emerged (with the Federalists being obsessed with the defense of an esprit de corps). To attack the Constitution as a means to attack Bush is unworthy of you. And it may have "undemocratic elements", but what serious Constitution, interested in the preservation of fundamental values, doesn't have undemocratic elements? From my point of view, those undemocratic elements are precisely the ones that would defend anyone against excesses. Or did you forget that Congress backed Bush in 2003 and that he was reelected in 2004? That if he were as evil and manipulative as you depict him, he could have appealed to the people in order to desobey the Supreme Court? Your book "Our Undemocratic Constitution" is childish.You seem not to understand the context in which your founders worked (reading Wood's The Creation of the American Republic in a serious way would help) and you seem to attack precisely the elements that are able to defend everyone from the excesses of a "Grand Decider" manipulative and evil enough to appeal to the people's worse fears and act accordingly.
- luispc
February 7, 2007 at 5:59am
I agree with you and appreciate what you're trying to do, but as luispic's letter just above illustrates, this is not a subject on which people can think rationally. Any serious analyst would understand, for instance, that it's a variant of the genetic fallacy to excuse the Constitution based on "the context in which [it] emerged." Indeed, anyone who could think straight on this topic would realize that understanding that context is an argument FOR changing the Constitution, not against it, because clearly the context that existed in 1787 no longer does. But Americans cannot think straight on this topic. It will take more than a bad presidency (or a failed election, like 2000) to turn them around -- it will take some huge upheaval, on the order of the Great Depression (but without a creative constitutionalist like FDR handy), an upheaval that they believe threatens their very livelihoods and that the Constitution clearly stands in the way of resolving.
- JSmith125
February 7, 2007 at 6:17am
1: You misread Jefferson. He did not intend to give carte blanche to each new generation, but to allow each new generation to find better ways to honour the self-evident truths of the Declaration of Independence. Reading Boorstin would help on this. Constitutionalism for Jefferson is a moral endeavor and not a populist one. From this angle, what separates him from Madison is not that much (their correspondence is illustrative). 2. The composition of the Senate has to do with Federalism and with the need of a Chamber of moderation. To transform the Senate into a populist organ is dangerous and counterproductive. The flaw is not on the Constitution (tant pis for the Founders bad intentions on this) but, on the contrary, on the lost of the public-spiritdness of the Senate (2003 is an example...). 3. On the election of the President, the system is intended to avoid populism and to preserve Federalism. But on this I understand your point. This may need revision in a moment in which you no longer have United STATES but UNITED States; 4. If you allow the President to be removed by a no-confidence vote, the entire equilibrium of the system breaks. From that day on, it's no longer usefull to elect a President. To elect the Congress will be enough, if you want to avoid a civil war... 5. On Article V, as Ackerman very well demonstrated, the People can speak by other means. You don't have to change the Constitution. And as Sunstein said, with your fascination with a new Convention, you seem to forget it's risks. Imagine if in the post 9/11 mood, someone had pushed for a new Convention? With all this, I want to stress, I do not want to affect the enormous respect you deserve. Constitutional Faith is a magnificent book and I admire your work. I just think that your hate for Bush is blinding you. Not that I don't have sympathy. I don't like Bush, God knows. But I would not throw out the baby with the bathwater, as I said.
- luispc
February 7, 2007 at 6:48am
"Indeed, anyone who could think straight on this topic would realize that understanding that context is an argument FOR changing the Constitution, not against it, because clearly the context that existed in 1787 no longer does." I don't know about this. It was a different context sure. But the fear of a tyranny of the majority still applies. And the entire building is based on that.
- luispc
February 7, 2007 at 6:50am
Look here...suppose I freely admit that there are serious risks associated with Bush remaining in office. You yourself, Sanford, are overlooking risks of your own, associated with precisely the actions you want taken. I can readily see the benefits of being able to vote a President out of office under certain circumstances to be replaced with someone not part of his administration. I can just as easily see the possible disasters involved. You cite James Buchanan and George W. Bush; as counter-example, I cite Abraham Lincoln. Lincoln's name is being tossed around lately by Bush-defenders, to be sure. But quite apart from any comparisons between the two, Lincoln did in fact find himself presiding over a tremendously unpopular war. He came dangerously close to being unseated even in 1864. Had it been possible to remove him with a vote of no confidence during his first term, it would certainly have been done. I don't think we want to imagine what the consequences of that would have been.
- Mabus
February 7, 2007 at 8:25am
Whatever functions the Senate serves--and persons on all sides can increasingly wonder what the answer to that question is--preserving federalism surely isn't one of them. The current Senate operates as an affirmative action program for residents of small states, which has nothing at all to do with protecting the values that many (including myself) find in federalism, whether it's the ability of states to serve as "little laboratories of experimentation" or encouraging greater civic participation by encouraging that decisionmaking be made at the lowest possible level. Since the 16th and 17th Amendments, senators (of both parties) are happily part of the tax-and-spend national political apparatus, though they obviously disagree on how exactly the money should be spent. Returning to the principal subject at hand, whether we would be better off with a procedure for termination of a particular president's term of office via a vote of no confidence (instead of having to hope that (s)he is a criminal who can be impeached), I agree that there are risks attached to my proposal. I don't believe that any serious proposals for change (or, for that matter, to preserve the status quo) are "risk-free." What I most want to do is to encourage a serious national conversation about whether we are truly well served by a number of our "hard-wired institutions," which will necessarily require a sober analysis of the risks attached to both stasis and change. The only thing I am positive of, with respect to luispc (whose kind words about Constitutional Faith I much appreciate) is that citation of the wisdom of the framers is close to irrelevant. What we should most admire about them is their openness to the "lessons of experience," not the particular solutions that they thought (perhaps with good reason) made sense in 1787. I do detest Bush; let there be no doubt about that. But, frankly, if the only detestable thing about him were his domestic policies, I would be inclined to say, with a sigh, let's just wait until 2009, in part because presidential power is remarkably limited on the home front. There really are limits to the harm that any given president can do (and, concomitantly, the good that (s)he could do). It is the foreign policy/military side that truly scares me (and, by all accounts, much of the population. I seriously doubt that anything close to a majority of trained military officers has confidence in their commander-in-chief. One might respond, "so what," we live under a system of civilian control of the military, which is a very good thing indeed. But one surely must have some minimal level of confidence in the Commander-in-Chief, which I believe is now wanting.
- openu
February 7, 2007 at 10:58am
I reread my posts, and I realize they were not very polite. I apologize. On the no-confidence vote, I still don't agree with you. With a constitutional change, you cannot mend the blindness of the American electorate in 2004. Everyone in Europe was shocked with the reelection of Bush. What are these people thinking (?!?), is what was generally asked. I do not defend imobile Constitutions to be respected simply because they must be. Still, on this, there is a perfect balance between President and Congress that would naufragate in case one organ depended politicaly on the other. And if you wish to take any President down, what would be the objective standards? Standards that would defend someone like Lincoln and Clinton, but not someone like Bush and Buchanan? There's no way of preventing this process to be a wild political one, except "crimes and misdemeanors". Of course, you can choose to have a parliamentary system and have the Executive responsible before Congress. But this doesn't guarantee anyone against an electorate moved by someone like Bush. On the contrary: it virtualy concentrates power in political parties. And if a President is going to be responsible before Congress, it's impossible to be talking about an elected President.To turn the People that elected the President against the People that elected Congress?!? This would be a wild experience, never watched in any serious constitutional experience. With the possibility of provoking wild civil unrest...and civil war in extreme circumstances. I'm sorry, but I do think that you have to put up with Bush until 2009. And worry about America's political culture. How could this people be so vulnerable to the manipulation of Fox News is what I ask... No Constitution, no matter how perfect it is, is able to defend anyone if a people is not virtuous and educated enough. This is why Jefferson was so worried with political education. Yes, I admire Jefferson (much more than Madison, who was obsessed with property, but in the end created a system powerfull enough to defend all minorities and not just his minority), and I think that their lessons endure. And on Madison he was right about the absolute need for veneration of Constitutions. Americans perhaps can be very blase about this. But all it takes is to remember Weimar to understand the importance of a "Constitutional Faith". And don't fall into the mistakes of the French. No Constitution will ever be perfect, since it's the work of men... So, better to stick with the one you have (with the corrections of Reconstruction, New Deal and the Civil Rights Movement). The entire world admires America for it's constitutional experience.
- luispc
February 7, 2007 at 12:13pm
As much as it saddens me to say it, I think we're better off without a vote-of-no-confidence clause. It would place too much power in the hands of Congress, such that it would mirror the winner-take-all structure of parliamentary systems, and all the tumult, factiousness, and unpredictability that usually go with them.
- huntlib
February 7, 2007 at 12:18pm
In sum, the comments above are contra changing our Constitution to allow easier removal of the President, and I agree with them. The Constitution contains mechanisms for changes to itself, and for removal of officeholders, but takes care that none of these things can occur frivolously. Admittedly, this leaves a weakness for accommodating change which MUST be made quickly. Those who rashly think they know (better than anyone else) when these changes are necessary, have relied on extra-Constitutional means--and have suffered the consequences of their actions. Regarding Bush himself, although he is the most incompetent President our lifetimes, it is misguided to hate him. To use a vivid (if coarse) metaphor, this would be like hating the penis of a rapist. Removing the offending organ, while allowing the rapist his freedom, allows (indeed, may elicit) more violent--if slightly modified--crimes. In any case, Bush himself may not even be as deluded by right-wing fantasies as is his cohort of handlers. Some of the problem with impeaching him is that he is so far 'out of the loop' that the crimes of this administration are not ordered by him. Is not impeaching Cheney a more useful, and achievable, course of action?
- JBerkowicz
February 7, 2007 at 3:06pm
"Compared to what?" A serious discussion of "risk" must answer that. I believe that's the main point of Prof. Sunstein's book, and of Prof. Levinson's critics here.
- 174773
February 7, 2007 at 3:30pm
In my book Our Undemocratic Constitution, I specify at least two features that a system of "no confidence" should possess: a) a suprermajoritarian vote that would, as a practical require, require some significant bipartisan agreement that the incumbent is indeed incompetent. (One can imagine a president being faced with a Congress that is heavily dominatd by the opposing party, but that is a wildly unrealistic possibility.) My favorite number is 2/3, but if someone wants to suggest even 3/4, which would make such a vote considerably more difficult, I'd be willing to settle for that. b) The "opposition party" could not take over the White House without an intervening election. So my proposal would allow, say, 2/3 of Congress assembled together as a single body, to evict Bush (and Cheney) and allow the congressional Republican caucus to pick his successor, until either the next regularly scheduled election or until a special election that the Constitution in fact contemplates. This does not, in fact, dishonor the electorate that put the president into office (assuming, for sake of argument, that electorate in fact constitutes the majority of voters, which is all too often not the case). Rather, it allows the voters to indicate that they have changed their mind by telling their representatives to throw the rascal out. Even those of us who believe in "advanced directives" in medical care also give the patient the right to change his/her mind, and say that "I'd like to receive extraordinary care after all." And, indeed, we allow divorce even though a person has pledged "until death do we part." These are my alternatives (spelled out further in my book). And yes, I agree wholeheartedly that it would be a good idea to "warm up" on Cheney, surely the most completely dreadful and dangerous VP in our history, even if one thinks that other presidents have been worse and more dangerous than GWB. sandy levinson
- openu
February 7, 2007 at 4:08pm
I'm aware of those alternatives but, in your book, you state that they are only proposals. Clearly you say "It is not necessary in this book to decide which among these presents the best alternative or whether there are even better alternatives available" (p. 120). And the alternative of the 2/3 majority - which is the most impressive and decisive one -, with all due respect, is not adequate. If I'm not wrong, America's system of government cannot work without a minimal cooperation between President and Congress. Such a cooperation would be completely damaged in the day in which a Congress would vote to destitute a President by, say, a 60% majority. It's better to "keep up appearences" than to say explicitly that this Congress with this majority has no confidence in this President, but cannot take him down. "Keeping up appearences" and minimal standards of "institutional solidarity" is essential to the health of any system with minimal components of interdependency. And to the health of system that wants to keep a President with minimal credibility when saying that he speaks for the people of the US. That's precisely why, from my knowledge (but I may be wrong since I do not know every constitutional system on earth), there are no no confidence votes with 2/3 majorities, but only with absolute majorities and relative majorities. I think that if you want to have a no confidence vote, you have to pay the price and can't find a subterfuge in a 2/3 majority. Again with all due respect, which is a lot, Luis Coutinho PS: I apologize again for my first posts. I was sleepy and angry, and perhaps shaped by the mood of the discussion on George Soros. THAT was a dog-fight.
- luispc
February 7, 2007 at 5:16pm
First of all, no apologies are necessary. Secondly, I think there is some real merit in the argument that we would pay a price if Congress really did vote no confidence by a 60% majority that was, however, not enough to get rid of the President. Two things come to mind: First, the impeachment of Bill Clinton served as a natural experiment of sorts. One of the more remarkable aspects of that episode was the Clinton's overall popularity seemed to go up, and most observers believe that he might well have been re-elected had the 22nd Amendment (which I am genuinely ambivalent about) not prevented him from running again. Secondly, Adrien Vermeule, of the Harvard Law School, has a forthcoming book discussing various aspects of what he calls "microsdesign," including deciding on the right voting rules. An "absolute majority," i.e., a majority of all eligible congressional voters, and not simply a majority of those who happen to show up and vote, makes sense in lots of situations. I'm not sure I'd support it here, but there's certainly a tenable argument for the proposition. But now, of course, we're talking about the best way to structure a meaningful vote of no-confidence, rather than rejecting the very idea of out hand, regardless of the voting rules. sandy levinson
- openu
February 7, 2007 at 9:57pm
"But now, of course, we're talking about the best way to structure a meaningful vote of no-confidence, rather than rejecting the very idea of out hand, regardless of the voting rules". I don't agree Professor Levinson. I think that we are demonstrating that there's no way (objective standards; qualified majorities, etc.) for a no no confidence vote to be allowed and still avoid the procedure to become a wild political one that would inevitably break the internal logic of America's system of government. Most of all when we're talking about only two parties with real representation. So, I think the idea must fall, although I do understand the contextual motivations behind it. Anyway, I'm looking forward to that book by Adrien Vermeule. Lu
- luispc
February 8, 2007 at 6:37am