What, If Anything, Do We Know about Constitutional Design?/Foreword: "I Read the News Today, Oh Boy"[dagger]: The Increasing Centrality of Constitutional Design

By Levinson, Sanford | Texas Law Review, June 2009 | Go to article overview

What, If Anything, Do We Know about Constitutional Design?/Foreword: "I Read the News Today, Oh Boy"[dagger]: The Increasing Centrality of Constitutional Design


Levinson, Sanford, Texas Law Review


Consider the lead sentence of a recent story in the New York Times on the aftermath of the rejection by the California electorate of a number of measures most political leaders deemed necessary to rescue the state from its present desperate economic situation: "Direct democracy has once again up- ended California - enough so that the state may finally consider another way by overhauling its Constitution for the first time in 130 years."1 The problem, however, is not only "direct democracy," a reference to the constitutionally granted ability of the electorate in California to pass legisla- tion and even constitutional amendments by initiative and referendum, but also, and just as importantly, to other aspects of the California Constitution. Thus the distinguished magazine, The Economist, in a pre-election article entitled "The Ungovernable State," noted that "California has a unique com- bination of features which, individually, are shaped by other states but collectively cause dysfunction."2 The first is "the requirement that any budget pass both houses of the legislature with a two-thirds majority," a requirement found in the constitutions of two other states, Rhode Island and Arkansas.3 "But California, where taxation and budgets are determined separately, also requires two-thirds majorities for any tax increase. Twelve other states demand this. Only California, however, has both requirements."4

It could be comforting, at least to those of us who neither live nor have friends in California, to believe that California is indeed "unique" and, therefore, has relatively little relevance for the rest of us. But Paul Krugman, responding to the same imbroglio in California, wondered if "America [will] follow California into ungovernability."5 To be sure, he acknowledged that "California has some special weaknesses that aren't shared by the federal government," but he went on to suggest that at least some of "the problems that plague California politics apply at the national level too."6 Perhaps he was thinking only of increasing hyperpartisanship, but perhaps this Nobel Prize-winning economist might be contemplating as well certain structural problems in the U.S. Constitution that generate our own national "democratic deficit"7 and dysfunctionality.8

More surprising, in some ways, was a story only several days later by New York Times reporter John Burns on the present political turmoil in Great Britain following disclosure of financial improprieties by Members of Parliament. "To speak of a 'political revolution' in Britain would seem chimerical," Burns wrote, "were it not for the number of times the possibility has been raised these days, in precisely those terms, by politicians and the London-based commentariat. Suddenly, the talk is of a political system grown petrified and in urgent need of a root-and-branch overhaul that restores the accountability of politicians - and of the government - to the people."9 It might also be worth noting that Great Britain is, of course, part of the European Union, which has had its own notable difficulties in designing a constitutional treaty that can gain the requisite approval from all of its now-twenty-six members.10

Moving eastward from Europe, one finds continuing concern about the degree to which the Iraqi Constitution is providing the basis for any kind of political resolution to the fissures present within that country among its various religious and ethnic groups. As Ambassador al-Israbadi argues in his contribution to this symposium, "the constitutional process" by which the present Iraqi Constitution was designed "nearly ripped the country apart and threatens still to do so."11 Finally, as one moves to the heart of Asia, there is the ongoing "trial" in Myanmar of democratic activist (and Nobel Prize winner) Daw Aung San Suu Kyi for alleged violation of the terms of her many-years-long house arrest.12 As David Williams argues in his extraordinary article,13 intermeshed with the intricacies of her situation and movement are the often-overlooked rebellions by countless ethnic splinter groups within the country, many of whom are engaged in ongoing attempts to draft their own constitutions.

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