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Is the glass half-empty or half-full?

By Jack M. Balkin

There is, of course, much to agree with Jack in his post immediately below: Some of what is terrible about the Senate--today's outrage is the "inability" of that august body to move forward with confirming the director of the Census because of a "hold" placed on the nomination by an unnamed (undoubtedly mad-dog Republican) senator--could be alleviated with changes in Senate rules. Both Jack and I agree, for example, that there is nothing "hardwired" about the filibuster or, even more so, the "hold," which is far more indefensible that the filibuster, which can at least claim a certain kind of Calhounian pedigree for people who are into "concurrent majoritarianism." The hold appeals only to lunatics who believe that "unanimous consent" offers a viable model for political decisionmaking. I have obviously written much over the past couple of years about the "constitutional dictatorship" attached to certain aspects of the presidency. Although the consequences are hardly as serious, the "dictatorship" of individual tin-horn senators to block legislation or confirmations is, in may ways, more outrageous. At least the President can claim, plausibly or not, to have been elected by "We the American People."

So we might describe this as the "half-full" view of constitutional possibility: We don't have to worry about anything that might require an actual constitutional amendment because the Constitution allows us exits from the the dysfunctionality now besetting us. I, of course, am a partisan of the "half-empty" school. I obviously believe that we should be pressing non-amendatory institutional reforms at every opportunity, but I also believe that we need to confront the extent to which we need to return to the very best legacy of the Framers, which was their willingness to confront the deficiencies of existing institutions, in their case the Articles of Confederation.

I wonder what Jack would be arguing if, for example, we were talking about the California constitution and its own contribution to the present crisis in that state. And, if he agrees with those who call for a new constitutional convention in California, is the difference between California and the US the fact that California has indeed gone over the cliff--i.e., it is facing the catastrophe that, empirically, seems to generate constitutional imagination and transformation--whereas we're still on the road, even if the car we're driving has slick tires and very bad brakes? (Mark Graber, incidentally, has written a witty though (to me) ultimately unconvincing critique of my "bad brakes" metaphor, in which he argues, altogether correctly, I concede, that it is often rational to keep driving what you know to be a defective car rather than paying an enormous price for a car (or for repairs) that will inevitably generate its own risks.) I would like to think that we might engage in our own constitutional reform prior to full-scale catastrophe, though history suggests that the odds are against any such optimism.

Full post as published by Balkinization on June 09, 2009 (boomark / email).