Department of “Wish I said that,” Ronald Dworkin edition

Ronald Dworkin has an important essay in the New York Review of Books. Read the whole thing here. Here’s a key passage:

If the Court does declare the act unconstitutional, it would have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically workable remedy—not because that national remedy would violate anyone’s rights, or limit anyone’s liberty in ways a state government could not, or be otherwise unfair, but for the sole reason that in the Court’s opinion our constitution is a strict and arbitrary document that denies our national legislature the power to enact the only politically possible national program. If that opinion were right, we would have to accept that our eighteenth- century constitution is not the enduring marvel of statesmanship we suppose but an anachronistic, crippling burden we cannot escape, a straitjacket that makes it impossible for us to achieve a just national society.

I wish I had written that.

Comments

    • J. Michael Neal says

      It makes you wish that there was some way of amending the Constitution that didn’t give some people vastly more say in whether or not it happens than other people.

      • MobiusKlein says

        It’s the Land vs People debate. Why it is good that Wyoming has the same sway as California, with 1/47th the people, I don’t understand.

      • Brett Bellmore says

        Fine, point out to us an example of an actual amendment submitted to the states, which failed because it was disproportionately opposed by small states. If it’s a real problem, ought to be easy.

        This is a case of using a theoretical difficulty which doesn’t actually come up in practice as an excuse why our political class can’t be bothered with following the rules they swore oaths to obey as a condition of taking office. It’s like rejecting democracy and imposing a dictatorship, and using Arrow’s theorem to justify the coup.

        It isn’t “an anachronistic, crippling burden we cannot escape,”, it’s a procedural safeguard they can’t meet because the amendments they want don’t have popular support. And they know it, that’s why they don’t even make the attempt.

        And let me anticipate the next complaint: The super-majority.

        That’s not a requirement for overwhelming support. It’s a requirement that the support be well distributed, that one part of the nation not impose an amendment on another part. Each elected representative is a sampling of opinion in their district. If an amendment has well distributed majority support, then a majority supporting it in a super-majority of districts is assured. Simple statistics.

        • rick says

          This is a case of using a theoretical difficulty which doesn’t actually come up in practice as an excuse why our political class can’t be bothered with following the rules they swore oaths to obey as a condition of taking office.

          Much like arguments about preventing “voter fraud”.

        • Dennis says

          Oh, how about the Equal Rights Amendment?

          Not ratified by any part of the State Lege: Utah, Arizona, Arkansas, Alabama, Mississippi, Virginia and Georgia.
          Ratified and rescinded by: Tennessee, Nebraska, Kentucky, Idaho and South Dakota.

          Ratified and stuck in California, Texas, New York, Ohio,…

        • Dennis says

          Oh, and each representative is a shoddy sampling of opinion in their district. We can do better, we really can.

        • Byomtov says

          I think you are overlooking the supermajority requirement in the Senate, where a small minority of the population certainly does have the power to block an amendment. The seventeen smallest states have considerably less than 10% of the population. Indeed, half the population lives in nine states.

          And of course, as Marcel points out below, it’s not enough to look for amendments that failed. We have no idea how many were not submitted because all that acreage was going to vote against it.

          • Brett Bellmore says

            I will grant that the requirement for a separate supermajority in the Senate provides the theoretical possiblity of amendments being blocked by the representatives of a small fraction of the population. Again, demonstrate by actual votes this happens.

            It’s all just excuses to bypass the legal process actually set up in the Constitution, because that process doesn’t guarantee they get their way.

          • Katja says

            And that supermajority requirement is not a problem in and of itself.

            Constitutional amendments in most other countries require supermajorities, too. You generally don’t want to make it too easy to change the fundamental law of a country, especially where it protects minorities. There’s a definite downside to having a constitution that is too easy to change.

            Now, we do have the problem that our constitution is showing its age. It was designed in the 18th century, for a horsecart economy, when practically nothing was interstate commerce. Today, we live in a global economy where practically nothing is not part of interstate commerce. And that’s just the Commerce Clause.

            Now we combine that with a heavily divided two-party system (under a constitution originally written by people who didn’t really believe in parties and therefore designed it to require a fair amount of consensus and collaboration) and a judiciary that cannot even agree on a method to interpret that constitution and we have an impasse.

            That constitutional amendments require a supermajority in Congress is the least of our problems.

          • Byomtov says

            Don’t be ridiculous, Brett.

            A ten-foot stone wall presents a theoretical obstacle to traffic. Do you actually need to see cars smash into it to believe that it really is one? Surely you can grasp the idea that the enormous power of small minorities – of states or the Senate – to block amendments will discourage proposals.

            This is starting to sound like your position on Obama’s birth. You think he was probably born in Hawaii, but since you were not actually in attendance, and did not take a DNA sample of the newborn to compare against one from the adult Obama you’re not prepared to entirely concede the point.

          • Anonymous says

            Do I need to see a car actually run into the ten foot wall? Yes, I do. Why?

            Because it’s not a wall, it’s a gate, it’s supposed to stop some of the cars, and let others through.

            And because I know for a fact that nearly 30 cars have gotten through already.

          • Byomtov says

            All right. Call it a toll booth with a million dollar toll. Guess what? You don’t need to see drivers turned away to realize that it’s a serious obstacle, and that many divers just aren’t going to go that way to begin with.

          • Brett Bellmore says

            If I don’t see cars coming up the road to the wall/gate, you’re not going to convince me the wall/gate is responsible for the lack of traffic.

            So far as I can tell the problem isn’t that things are broken on the ratification end of things. The 27th amendment suggests we can still ratify amendments if they’re genuinely popular.

            If anything is broken it’s the origination end of things. But, what is ‘broken’ about it?

            The ‘living’ constitutionalist take, is that ratification is so difficult that Congress doesn’t bother trying amendments.

            The originalist take, is that ‘amendment’ by judicial subornation is so easy now that Congress doesn’t bother trying amendments.

            Now, the Citizens United decision was the rare instance where the Supreme court actually decided to strike down a federal law as unconstitutional. This has generated a little bit of a push for an amendment, but mostly seems to have hardened the determination in the Senate to vet Supreme court nominees better, to weed out any who might have some notion of enforcing the Constitution.

            If one of the CU inspired amendments actually gets sent to the states, and gets defeated, this will simply be taken as another example of the system being “broken”, rather than it successfully blocking a bad amendment.

            But, if the states do finally call a convention, originate some amendments, and ratify them, are you going to admit things aren’t broken on the ratification end? Or will you just claim the system is “broken” because amendments you don’t like can be ratified?

  1. marcel says

    Fine, point out to us an example of an actual amendment submitted to the states, which failed because it was disproportionately opposed by small states.

    This understates the problem; it seems plausible that many possible amendments never get that far because of the expectation that small, lightly settled states will oppose them, either in the Senate or in their state capitals.

  2. SamChevre says

    our constitution is a strict and arbitrary document that denies our national legislature the power to enact the only politically possible national program.

    I’d disagree with the “arbitrary”, but I think this is rather exactly the point of the Constitution–that some things will be politically possible, but not allowed.

  3. politicalfootball says

    The Equal Rights Amendment was opposed by 15 states that currently represent 30% of the population.

    Source material here and here.

    • Brett Bellmore says

      That’s right, now do the math: What percent of 50 states is 15 states. Maybe, oh, THIRTY PERCENT?

      You’re using as an example of the disproportionate power of small states an amendment where the percentage of the states and the percentage of the people were exactly the same?

      • politicalfootball says

        Quite right. So I guess the only problem here is that the representatives of 26% of the states can kill amendments, even after a two-thirds Senate majority has approved them.

      • John Beaty says

        Actually, since I was there and working on it, I can say with some authority that there were exactly 7 states that were violently opposed to the ERA, and 8 who joined the bandwagon: Utah, Virginia, Arizona, Georgia, Mississippi, Alabama and Arkansas. Census data indicates that this was approximately 11% of the population at the time (21.9M/201M). If you add the states that ratified and then rescinded (W. Virginia, Tennessee, S. Dakota, Nebraska, Idaho) you add another 8.6Mfor a total of 30.5M out of 200 million, or about 15%, with 11/50 states involved or about 22%.

        Not definitve, but certainly indicative. and having sat through the debates and listened to the back-room dealing, I can tell you for certain fact that UT, TN and the Southern Tier were absolutely committed to stopping the ERA at all costs.

          • John Herbison says

            Tennessee ratified quickly after submission, before the ERA’s opponents geared up to any significant degree. A subsequent legislature rescinded the earlier ratification.

          • Brett Bellmore says

            Seriously, I didn’t see one question in there, just statements.

            Setting aside the denial that states can rescind ratification of an amendment.(Before it reaches the magic number, of course.) I guess your point is that the states that rejected the ERA did not, at the time, perfectly match population to the number of states.

            So what, you demand perfection? I don’t. The United States are a federation of states. Representation is organized at the level of states, ratification is on a state basis, and states are heterogeneous. You want to abolish states, perhaps? That’s a different country, and good luck with that. We came about as close to that ideal with the ERA defeat as you’d expect by random chance, it didn’t go down because the 16 smallest states opposed it.

            For that matter, I don’t see you responding to my point about the ratification process not demanding overwhelming support at the population level, only well distributed support. In a heterogeneous country, amendments must, in order to be ratified, be supported by a widely distributed majority. If 51 percent of the population, widely distributed, supports an amendment, then most legislators will live in districts where the majority support it.

            As support for an amendment become more “lumpy”, the absolute level of support must increase in order for it to have a majority in a supermajority of legislative districts.

            And that’s how things must be for a federation of heterogeneous areas to be peacefully run. If your amendment process permits one area of the country to lord it over another area, to impose changes that large expanses of the country oppose, that’s a recipe for civil war.

            Anyway, to return to my point, the amendment process is not broken because ratification of amendments is no longer possible. The 27th amendment demonstrated that. If it’s broken at all, it’s because Congress, having created a mostly supine judiciary, no longer needs amendments to get what it wants, and so refuses to make a serious effort to amend the Constitution anymore.

          • John Beaty says

            Can’t reply below, so I’m doing it here.

            Brett, you said, “Fine, point out to us an example of an actual amendment submitted to the states, which failed because it was disproportionately opposed by small states. If it’s a real problem, ought to be easy.”

            I answered that. 22% of the states, comprising only 15% of the population. You insist now that there are other criteria. Fine, but not your original demand. You consistently change what you ask for/demand to avoid the issues at hand, and so you never need to say you were, in fact, wrong. Which you are often, both in the matters of fact and interpretation.

            The facts of the matter are very straightforward: a constitutional amendment would not pass if a small number of states opposed it, because of the representation accorded to them based on number not population. This is civics 101, sir, not something new. It has been recognized as an issue since the constitution was created.

  4. says

    My prediction is 6-3 in support of the lesgislation with Roberts and Kennedy joining the majority.
    My reasoning is simple: Obamacare is Capitalism’s last gasp effort to do health care.
    And we know one sure thing about our country: Capitalism must be given every chance to solve a problem it is incapable of solving.
    (Sort of like the flunky in the back of the class who the system hopes will pass remedial algebra on his 5th chance.)

    A 6-3 opinion allows the right-wing ideologues to have it both ways.
    It is how they can best compromise with themselves:

    1) The dissent gives Scalia, Thomas, and Alito a chance to tear things up with their small government canines.
    2) Writing the majority opinion gives Roberts a chance to temper all enthusiasm for the Act while giving Capitalism another 10-20 more years to prove it can’t do health care insurance.

    So 6-3 is the best of all possible Conservative worlds.
    A world where Voltaire’s saying now reads: Don’t let the worst for the most become the enemy of the best for the fewest.