We the People, Part II: Constitutions, Competition, and Cartels

Providence has been pleased to give this one connected country, one united people; a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in manners and customs, and who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence.

John Jay, Federalist 2.

Yesterday’s post discussed Adam Liptak’s New York Times piece on the decline of the U.S. Constitution as a global model, entitled “’We the People’ Loses Appeal With People Around the World.” Today’s post is dedicated to the proposition that Liptak’s title is right on the money, although quite probably not in the intended sense: the “We the People” of the Constitution encapsulates a constitutional model that is simply not available to many countries, under modern conditions. Their constitutions don’t look like ours because they can’t, and any discussion as to whether they should or shouldn’t is a silly distraction. As always, The Upside Down Constitution contains a more extensive version of the argument.

Our Competitive Constitution

Constitutions aim to produce long-term political stability, on democratic terms. (Okay, okay: “democratic” or “Living” constitutionalists don’t believe that. But their view of the Constitution as the tool of a Supreme Court vanguard to advance the demands of  progressive social movements—a position that Robert Gasaway and Ashley Parrish, in a terrific article (for full article, email elizabeth.demeo@aei.org), have aptly called “Marxist-Brennanism”—strikes me as dangerous nonsense.) How can that be done? One way is to organize the constitution on a principle of institutional competition: establish separate, specialized institutions with rival incentives; specify their powers (more or less); and establish decision rules for their operation.  The constitutional objective is not to contain the sovereign demos. Rather, it is (in Bruce Ackerman’s felicitous phrase) to make sovereignty problematic—by delegating it to separate, rival institutions—and then to check the people’s agents.

A “pure” competitive Constitution will be short, even minimalist. It won’t contain any distributive rules at all, and it will lack all but the most rudimentary rights. It will leave those matters to competitive politics, in confidence (or at any rate in hope) that the outcomes will remain within a range that is generally viewed as fair and efficient.  It’ll be difficult to amend, because you don’t want to expose the institutions that are meant to contain democratic instability to temporary passions and temptations. There, in a nutshell, you have the U.S. Constitution.

What it Takes

You will never comprehend the American Constitution unless you comprehend its sheer audacity: it requires an enormous confidence that the competitive rules of the game will prove stable and, moreover, generate acceptable outcomes (not in each case, but on the whole). Who in his right mind would commit to that wide-open game? You can look up the answer in the Calculus of Consent.

First, the constitution-writers and ratifiers must think of themselves as a single “We the People.” If their loyalties to some other collective entity—a tribe, religion, ethnic or religious group, class—run too deep, they’ll never commit to an open-ended competitive repeat game; they’ll want to protect their identity and entitlements. Hence, John Jay’s emphasis on “one united people.” It’s over-the-top in all but one respect: the bloody war for independence. We are the people who fought and won that war.

Second, constitution-writers and ratifiers need a long time horizon. Thomas Jefferson’s famous proposal for single-generation constitutions (alluded to by Liptak) is crazy: everyone will promptly turn to calculations of immediate advantage, and the entire enterprise will turn into an interest group racket. It’s only when people don’t know their place at a future table that they’ll stop loading the dice and look to rules that promise long-term, collective gains. You need a veil of uncertainty—i.e., a very long time horizon.  Hence, said the Founders in the Preamble, we intend to secure the Blessings of Liberty “to ourselves and our Posterity.” Next to “We the People,” those are the most important words.

Constitutions as Cartels

Look around the world: where and on whom would you urge the daring calculus of our Constitution—Kosovo? Kenya? Iraq? Pakistan? Ukraine? Egypt? Tunisia? Libya? Surely, you’re joking. Those countries can’t commit to competitive politics: the losers in round one might not get to play a second round at all. Even countries that aren’t divided along ethnic, religious, tribal, or linguistic lines can’t easily commit to a competitive constitution: they’ll want to avoid a potentially destabilizing class conflict. Germany’s Weimar Constitution is an early example; its 1949 Grundgesetz is a later, more successful one.

If competition isn’t a viable strategy to generate democratic stability, what is? The polar opposite is what political scientists call “consociation”—that is, an elite cartel (among parties, social partners, or ethnic or religious leaders)  to stabilize some agreed-upon distribution of entitlements, coupled with an agreement not to change that distribution unless every recognized group consents. Constitutions of this type have a very social-democratic feel. They regulate the distribution of all valuable assets, especially those that might otherwise become subjects of zero-sum games—oil revenues, public sector jobs, cabinet appointments, education, and the like. They favor proportional representation and proportionalism in all institutions. (Presidentialism is definitely out.) If they are federal, the system will feature financing mechanisms that guarantee a “fair” distribution of centrally assessed and collected revenues. Consociational constitutions feature elaborate catalogues of rights, not to protect individuals but to stabilize the entitlement structure: the rights are either ascriptive (women’s rights, minority rights,  language rights) or distributive (social rights, equality rights). Consociational constitutions must be readily amendable, lest social changes (for example, changed demographics) destabilize the bargain. And, they entrust the maintenance of the constitutional bargain to a (supposedly) independent guardian of the constitution and the social consensus. It’s for this reason that judicial review—unlike federalism and presidentialism—has proven a wildly popular American constitutional export.

Closer to Home

The United States Constitution is one (competitive) solution to the problem of ensuring democratic stability. What studies of the “declining influence” of the Constitution measure is the impossibility of replicating that solution under modern conditions, under very different circumstances. It’s an open question whether widely touted “consociational” solutions work any better. Donald Horowitz (for my money the best man in the comparative constitutions business) has harshly criticized consociationalists’ reliance on elites, cartels, and distribution formulas. What constitutions should do, he has argued in a Madisonian spirit, is to create incentives for cooperation among hostile groups and constituencies. But even in that version, modern constitutions will look very different from ours. (For example, they will contain very specific electoral laws.)

Perhaps, we should leave all that to the specialists and instead concentrate on matters of competition, cartels, and constitutionalism here at home. The Constitution, we’ve seen, presupposes a great deal of confidence in the regularity of competitive politics: in light of our actual politics, is that sustainable? (Tea Party constitutionalists say “no”: that’s why they all have fifteen constitutional amendment proposals in their hip pockets.) And perhaps because we no longer trust our politics, we’ve developed our fair share of consociational politics. For example, the true meaning of the Equal Protection Clause—with respect to higher education—is that “quotas are ok, so long as you lie about them.” To sustain that formula, we rely on a culture of consensus, periodic adjustments by the Supreme Court, and the “expert judgment” of elite institutions (Harvard in Bakke, the military in Gratz). The Court’s periodic recalibration of our consensus on gay rights, the death penalty, the display of religious symbols, and abortion has the same consociational logic and dynamic.

Purging our Constitution of this dross would make it even less like other countries’. But maybe there’s something to be said for “declining influence,” and American exceptionalism.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

About the Author

Comments

  1. Eric Hodgdon says

    Conditions of today are largely in part from the utter disregard of the Constitution by Congress present and past.

    From the Civil War, our proper representation in the House of Representatives started to decline. This declination continued with knowledge of the intent in, and to, the amount of debate which occurred during creation and ratification of the US Constitution.

    This known reduction of specified numbers continued until 1910, at which point it ceased entirely. Codified in 1929, this grave and selfish act on the part of the Congress has, I say, brought us to sad and troubling times today.

    No valid argument can ever be presented to counter the intentional subversion of the People, and their right to control their government. No person can present a rational argument in favor of this theft of the People’s Right to self-government by way of proper representation in their Congress.

    Currently we have more than enough reason to demand Congress call for an Article V Convention. The evidence is there. The reasons clear. The will of the People will not long remain so casual and retired. Evidence prevails such efforts to further diminish voices from just and proper representation.

    It will be seen this year whether further Inherent duties will supplant written violations.

    • says

      . The first amendment was dgisened to protect political speech and to protect religion from the government. Now it protects pornography, but not political speech and provides freedom from religion rather than freedom of religion (neither of which is present).Ironically, the courts periodically chose to ignore what the Constitution says or provide an interpretation so twisted that it contradicts the original meaning. For example, when was the last time the the Supreme Court found that any law violated the 10th Amendment? Yes it is in the Bill of Rights, but James Madison et al. didn’t really mean it.Now if we could only get our schools to actually teach what the document really says.

      • says

        What is flawed is not our custnitotion, it is Obama! It still amazes me that a man who has learned from Saul Alinski (Marxist extraordinaire), hung around with Bill Ayers, went to Wright’s church for 20 years, was also friends with Tony Rezko, would be running for president of this country! There’s probably a lot more that hasn’t come out on the Marxist Obama, but I doubt it would matter because people aren’t listening. They want him as president because he’s Black and promises change. What kind of change? Who cares? Change of any kind is good enough for them!It boggles the mind!

        • says

          I agree with John. A person (not to say all jugdes are ????) would assume that a later (in time) amendment was made with a full and complete understanding of the constitution as it stood when the amendment was being discussed. Hence, any conflict between that later amendment and an earlier one would be resolved in favor of the later amendment, even if that later amendment did not specifically overrule the earlier amendment. In political theory the term used is binding . Namely, a prior act of a legislature (or, in this case of the citizen’s themselves) can never bind a current or future legislature. The basis for this theory is simply that power is always exercised in the present with full knowledge of the past but never with full knowledge of the future. However, this would only apply to a constitution with in the state. I think it’s a very interesting question as to what would happen if Supreme Court of the United States got involved. It’s argued that when the states were accepted into the Union, the Federal government (as a proxy for the other states themselves) accepted them on the condition that they were obligated to be bound by the Federal constitution when it conflicted with the state’s own constitution (Utah is a good example of this). However, the exact parameters of this theory have never been fully explored. For example, given that marriage is traditionally left to the states, I find it unlikely that Supreme Court of the United States would rule any state constitutional change in that regard a violation of the federal constitution. But I could imagine situations (for example, the Commerce clause) where the Supreme Court of the United States would rule a validly passed state constitutional amendment federally unconstitutional. on the other hand, if there was a federal constitutional amendment that defined marriage in a certain way, it would be an open question as to if and how that would apply to the states via the 14th amendment to the US Constitution.

    • says

      In Illinois it’s Constitutional law is worthless. Hitler would have loved it. Chicago and Morton Grove have baennd handguns. In Cook County there is a complete ban on assault weapons, and the list of these weapons is endless. The opposite of ‘preemption’ is the rule. When I read other state laws (Pennsylvania for example) and I encounter preemption it is mind boggling – difficult to understand how some states are so rational while Illinois has so many restrictions and so much crime.In Cicero, Illinois, guns must be registered. The person who signed off on this law is now serving time in prison (8 years, Betty Loran Maltese.)

  2. says

    PierreI agree with you here on the duty to serve being enshrined in the cstinotution and that it is essentially a transformative document. This places a positive obligation on the state, a moral ought for the government to protect as opposed to merely refraining from causing harm. These are also known as secondary rights and are the reason for the common refrain that South Africa enjoys the most progressive cstinotution in the world. However, does this not put an undue amount of power in the hands of the judiciary? We are blessed in that our post-1994 cstinotutional jurists have been far-sighted legal minds who have been assertive when it comes to forcing the state to treat the least fortunate of our society with respect and dignity (The Grootboom case for land reform; The TAC case for AIDS treatment, etc). But what if we get saddled with conservatives or traditionalists with quite the opposite intentions?The prospect of certain individuals campaigning’ for the Chief Justice position (you know who) indicates that the control of the Constitutional Court has become yet another battle-ground in the fight for political supremacy of Zuma’s ANC. If they succeed our noble cstinotution will be irredeemably sullied.Might there be a risk that a voluble and interventionist court could be used for less benevolent purposes; in other words, to go soft on the executive and to override other checks and balances? Do you think that the prominence of secondary rights politicises the bench too much and could entail some of the dangers that Isaiah Berlin warns about in his Two Concepts of Liberty?Although Berlin recognises that freedom for the pike is death for the minnow his thesis also warns of the risk of positive freedom, of forcing people to be free. In this I acknowledge why we needed to correct the status quo as this was not only just but also politically expedient. But are we mindful of the risks when we celebrate our assertive judiciary; a juristocracy , if you will, that could in future bypass elected officials on a regular basis?(Also for the benefit of your readers, could you provide us with some examples of Judge Hlophe’s anti-poor judgements. These opinions warrant some factual reference points.)

    • says

      In many ways, the Articles of Confederation can be considered the first United States iuostctotinn. Adopted by the Continental Congress on November 15, 1777 and ratified by all 13 original states in 1781, the Articles created a union of sovereign states. By 1787, the Constitutional Convention was convened and ultimately, what is still today known as the United States Constitution was approved and replaced the Articles of Confederation. In this research, these two pivotal documents will be compared and contrasted in an effort to understand and appreciate them both.The Articles of Confederation and ConstitutionQuite literally, the Articles of Confederation provide for a confederation of states, which is to say that the document took what were individual colonies prior to the establishment of the United States and made them a union of states that still kept a level of individuality but were united by the common desire to stay independent of any foreign control, wished to be able to collect taxes from citizens to provide for the needs of the states, and to engage in commerce with other states. This was an excellent step in the right direction governmentally, but it was not enough. There needed to be a unification of the states in that provided for the ability for the states to be represented as a nation, to be protected as a nation, and to provide for the benefit of all citizens as a nation. Realizing this, the founding fathers who laid the groundwork of the US in the first place, moved forward with great caution, knowing that they needed to create a new legislative document but also knowing that it needed to be an improvement over the Articles if it were to be worthwhile. This is how the Constitution came into existence.

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