Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

When is the best time to engage in reform?

By Jack M. Balkin

A respondent to my preceding post wrote, iIf Bush's great adventure has taught us anything it is that in the midst of a crisis, it is not the time to make shit up. /iThis raises a genuinely interestng question. Begin with the undeniable fact that the impetus for the Philadelphia Convention in 1787 was the widely shared perception that the United States was in a state of "crisis." There never would have been a convention had Madison et al. believed that things were just fine and that minor tinkering (which would still have had to run the gauntlet of the unanimity requirement of Article XIII of the Articles of Confederation) would put us right on track. So if the respondent is accurate in his argument, then why not apply its lesson to the Constitution? At the very least, one might countenance the possibility that decisionmaking during a time of crisis is not the optimal time to make decisions that will binding on a country 220 years later in remarkably different circumstances.br /br /But what is the optimal time to make decisions? The sober answer, of course, is in times of non-crisis. But isn't the record fairly overwhelming that if things are considered to be quite fine, then there is little or no incentive for anyone to act. Instead Congress will respond to the "crisis" of child-kidnapping or whatever the tabloids and television stations are leading with at the time. As Rahm Emanuel apparently has said, "A crisis is a terrible thing to waste." I presume that what he is getting at is precisely that crises, like the prospect of dying the next morning, tends to clarify the mind. What is problematic is not making decisions during a time of crisis. Maybe the phone span style="font-style: italic;"will /spanring at 3AM (and I'd still prefer someone with Obama's demonstrated judgment over Clinton's, but I digress....) I certainly hope that the deepening crisis in medical care, where many more people are finding themselves without health insurance and access to doctors other than at overcrowded (and, in some cities, shutting down) emergency rooms, will provoke a move toward a more sane medical care system, ideally single payer.br /br /The problem is what political scientists call path dependence or "lock-in," where a decision made under crisis, however understandable at the time, takes on a life of its own and becomes functionally impossible to change. My model examples, of course, involve such structural and basically non-partisan (i.e., it really doesn't tilt in a particular ideological direction) features of our system as the electoral college and the hiatus between election and inauguration, wisely emulated by no other country in the entire known universe but defended by American patriots because this is, after all, the way we do (and have done) things from time immemorial (except when we had the good sense to move up Inauguration Day and the date for Congress to reconvene in the 20th Amendment).br /br /Defeating lock-ins is the appeal of "sunset provisions" in legislation, such as the PATRIOT Act, where Congress had explicitly to reauthorize many, if not all (I really don't know) of the key provisions. One can't really "sunset" a constitution, but at least fourteen states have provisions in their own constitutions that are in the "sunset spirit" by allowing their voters to call a new convention to consider the desirability of amendment. (Connecticut voted against calling such a convention this year, a very important decision given the gay-and-lesbian-marriage decision of the Connecticut Supreme Court a month before the election, but otherwise regrettable unless one believes, for example, that Connecticut really needs a bicameral system and wouldn't be better off emulating the sober state of Nebraska, which seems to function just fine (and more cheaply) with one house.)br /span class="fullpost"br /Finally, I am put in mind of the most pernicious feature of arguments made by right-wing apologists for Israeli policy vis-a-vis Palestinians. They tend to argue either that a) Israel is beseiged by terrorists (which is often true) and thus can't negotiate, because that would be capitulating to terrorism, or b) things are really going pretty well (i.e., there are no terrorist incidents), so why should Israel make any concessions. We all know what that has led to. Similarly, if we can't engage in a serious discussion now about presidential succession because we're in the midst of a crisis, and then won't engage in such a discussion two years from now both because there will be other crisis dominating our attention and because we will have forgotten (or repressed) the terrible costs of the current episode in lameduckery, we will adhere to the status quo until we slide over a final cliff and wonder why no one bothered to buy new tires.br /br //span

Full post as published by Balkinization on December 19, 2008 (boomark / email).