Notes on a Theory…

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Posts Tagged ‘Sanford Levinson

Blaming the People: Democratic Efficiency as a Cop Out

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Mark Graber takes “constitutional populists” to task for failing to blame the real culprits when it comes to our broken system—the people.

        Constitutional populists always assign the blame for constitutional failings to evil institutions which are thwarting the good American people from fully realizing their constitutional commitment to the “Blessings of Liberty.”   If we can just get rid of the Electoral College, eliminate state equality in the Senate, abandon life tenure for federal justices, and change the rules for constitutional amendment, my friend Sandy Levinson and others imply, gridlock would disappear, the American people would cherish their governing officials, and most other ills of contemporary American politics would be significantly alleviated.

This populist optimism fails to acknowledge that the cause of most contemporary constitution ills lie in the character of the American people rather than in American constitutional institutions.  Consider that one major party in the United States routinely runs candidates for public office, most notably the presidency, who deny basic scientific and social science findings.  Give me a billion dollar backer, and I thought I could make hay in the Republican primaries on a platform that questioned the Pythagorean Theorem (the theorem is un-American and no one in the academy permits any dissent from liberal right-triangle orthodoxy).  One does not have to be too skillful at “connecting the dots,” to quote my friend again, to realize that no commonly proposed constitutional amendment is responsive to a society many of whose members reject evolution and think that Mary and Ben’s thirty year marriage will somehow be affected if John and Tony are also allowed to be married.

First off, it seems clear that there is a vast difference between arguing that some reform is needed and believing that achieving that reform will bring about a utopia.  As near as I can tell, this is a strawman.  From what I’ve seen of Levinson, he’s implied no such thing. People generally want to improve institutional structures to improve politics, which I think we all appreciate is a messy business.  Unless you’re trying to place control in the hands of some unaccountable body (Supreme Court, the Fed, etc.) you probably don’t think politics will disappear.

The second point is an example of a fairly common error in logic. Graber’s proof that it’s the people who are the cause of our ills rather than our institutions is statements of candidates running for office and their success. But you can’t prove an outcome is caused by some factor by pointing to the outcome alone.   The whole argument hinges on the assumption that causation runs from the mass of individuals to the functioning of institutions.  It makes more sense to assume that institutions produce such beliefs, to the extent they exist, in people.  But either way, stating the problem is the beginning of the argument, not the end.

A great deal of political science makes the same mistake, as does the bulk of political punditry.  If Congress is dysfunctional, it must be because the people are increasingly polarized. (They aren’t.)  If Republicans win elections, it must be because the people are increasingly conservative. (They aren’t).  If a majority of people say something in a poll, that causes political outcomes, not vice versa. (Wrong again).  (A great resource on all this is Class War?: What Americans Really Think about Economic Inequality by Page and Jacobs).

it strikes me that increasingly the power has been shifting towards those at the top.  Political explanations that rely on formal understandings of how politics work confuse justifications for explanations.

The myth of democratic efficiency is a cop out.  It reassures us that we bear no responsibility for changing things.  It means we don’t have to contest these issues, and seek to change the views of our fellow Americans.  It means we don’t have to build better institutions, mobilize our side, or articular what it is we believe.  It makes us quiescent.

Given the challenges we face, that’s the last thing we need.

Written by David Kaib

August 10, 2012 at 9:40 pm

Thirteenth Amendment and the Normalization of Coercion

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The other day I linked to Balkin and Levinson’s excellent new piece, The Dangerous Thirteenth Amendment.  The basic idea is that, because the 13th Amendment lacks a state action component*, and because coercive relations are exceedingly common outside the context of chattel slavery, a broader understanding had the potential to seriously disturb that status quo (especially racial and gender hierarchies).

Discussing why the North turned against Reconstruction and the cause of equal rights for black (men), Balkin and Levinson noted:

Northern white elites increasingly feared what they perceived as the threat of “socialism”—demands by freed blacks and their white sympathizers for redistributive programs. Elites feared that newly empowered majorities would be led astray by “[w]eak-minded sentimentalists or corrupt demagogues” who would stir up discontent among the masses.  Benedict tellingly quotes a now-forgotten reformer, Abram S. Hewitt, who wrote that “[t]he problem . . . . is to make men who are equal . . . in political rights and . . . entitled to the [formal right of] ownership of property content with that inequality in its distribution which must inevitably result from the application of the law of justice.” (citations omitted)

One might think that it was generations of forced labor, rather than efforts to correct that, were ‘redistribution’.  (This quote is also an important reminder that ‘socialism’ typically means ‘failing to reinforce inequality and hierarchy.’)

There’s a lot to this argument.  But Balkin and Levinson frame the discussion around a choice between 1) understanding the term ‘slavery’ as simply applying to chattel slavery, which they argue was largely how it was meant at the time of the framing of the 13th Amendment or 2) understanding the term more broadly as “the project of ending domination in social life, and securing self-rule and self-sufficiency,” which is closer to how it was understood earlier in history and by later movements that sought to draw on it (like the labor and Civil Rights movements).  But the text itself counsel against this, barring “slavery [or] involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted.”  Focusing on that, as well as understanding, as the court long has (as the authors discuss as well), that this extends to “badges and incidents of slavery,” suggests a far wider scope for the 13th Amendment without reaching back into history for alternate meanings. It’s also worth pointing out that the amendment contemplates primarily legislative enforcement, again, like the 14th and 15th Amendments, something that’s been largely ignored but flows logically from both history and text.

That said, when one adds together things like the Preamble, the Bill of Rights, and the 13th and 14th Amendments, I think you get to a fairly radical place, one which does at least question domination in social life.  These provisions all embody the notion of  equal personhood.  There are parallels to be made between chattel slavery and other institutions, and it’s worth engaging these questions.  Breathing life into the 13th would advance this project, which is one more reason why this piece is so important. It reminds us to take seriously the deep resonance between various forms of oppression and various movements of liberation.  Challenging the normalization of coercion, tying together its different forms, is the best sort of politicization, something that is sorely needed.

*I actually think too much has been made of this when it comes to the 14th Amendment.  The Equal Protection Clause requires states to provide the protections of law equally. (It’s easier to notice what it’s saying when you disentangle the words used).  What are the protections of law for? Protecting us from others, especially private actors.  I believe this was the way the clause was understood when it was adopted but that it was rewritten as about government discrimination for the same reasons – a broader understanding was and remains ‘dangerous.’

Written by David Kaib

August 2, 2012 at 12:28 am

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