Open University

Risk Analysis, The Bush Administration, And The Constitution


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.

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