Academic journal article Boston University Law Review

Dysfunctional? Dissonant? Démodé? America's Constitutional Woes in Comparative Perspective

Academic journal article Boston University Law Review

Dysfunctional? Dissonant? Démodé? America's Constitutional Woes in Comparative Perspective

Article excerpt

INTRODUCTION

Many signs indicate that systemic political malaise and government dysfunction have taken hold in America. Sarcasm is prevalent in discussions of politicians and government institutions. Talk in the media is characterized by nonstop self-lamentation and doomsaying. International observers are becoming more and more concerned. All of this creates an impression of a fatally gridlocked, if not an altogether lost, political and constitutional system. Certainly, government shutdown is not a sign of good political health in any polity, let alone in a major economic and military powerhouse that professes to be the motherland of modern democracy. That certain "hard-wired" structural elements of America's constitutional order are to blame for some of the country's political woes seems indisputable.1 The challenge of constitutional obsoleteness and the distorted policy outcomes it yields seems particularly pressing. It is clear that a constitutional order adopted in the late eighteenth century is no longer entirely suitable for a twenty-first century powerhouse democracy with a population of over 300 million, let alone for addressing new- age challenges such as the megacity and the environment. But it is only by turning our gaze overseas for some comparative insight that we can assess how bad America's constitutional woes truly are.

In this brief Article I wish to place America's constitutional shortcomings in a broader context by considering them in light of four types of constitutional gridlock and dysfunction that are prevalent around the world. First, the "fundamental constitutional disharmony" scenario is characterized by discordant constitutional orders that disagree about the very definition and raison d'être of the polity as such, and fierce debate about sources of law and the form of government that result in an apparently oxymoronic constitutional framework (for example, Egypt, Israel, Pakistan, Malaysia, and Turkey).2 Second, the "synthetic constitution" scenario occurs where "artificial," bi- or multiethnic polities live under a pragmatic, second-order, problem-solving, unprincipled constitutional mode that perpetually faces a realistic possibility of breakdown (for example, Belgium, Bosnia and Herzegovina, and perhaps also the pan-European constitutional order). Third, the "opportunistic constitutional wars" scenario features frequent political struggles and strategic quarrels between rival self-interested elites that are disguised as principled constitutional disagreements, and may occasionally escalate into all-out constitutional wars (for example, constitutional battles between rival political elites in Romania or the Philippines, and challenges to fiscal federalism and reallocation of resources in oil- or mineral-rich federations such as Bolivia or Nigeria). Finally, the "inadequate constitution" scenario - this occurs where there are dated or otherwise deficient constitutional designs that impede effective government and that may yield derisory political outcomes (for example, Italy has had sixty-two governments over the last sixty-seven years; the population in Canada's 308 federal electoral ridings varies from 35,000 to over 125,000 so that a vote in certain parts of the country is "worth" 3.5 times more than a vote in other parts).

The U.S. constitutional order appears to share some features of the latter two scenarios, but fortunately none of the former, deeper, and more life-threatening two. Relatively speaking, and when assessed against the backdrop of these four scenarios, the American situation, serious as it may be, is not even close to being in the "terminal" state in which some observers portray it. Granted, America's major role in global economic, political, military, and cultural affairs makes its governance problems far more consequential than those of most other countries. From a purely analytical or "diagnostic" standpoint, however, that is a background story (much like how high blood pressure is a universal medical condition with well-documented causes and effects, whether the person suffering from it is Jane Doe, Mohammed Lee, or the President of the United States). …

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