Essentially Contested America

Given the years of virulent racism that minorities in our country have faced throughout our history, it is a bit shocking to see right wingers like Newt Gingrich and Rush Limbaugh accuse Supreme Court nominee Sonia Sotomayor, the first Hispanic ever nominated to that Court, of being a “racist,” based solely on one remark that she made in a speech seven years ago.   On this subject, I highly recommend Charles Blow’s recent New York Times editorial, “Rogues, Robes and Racists.”   As Blow notes, there is no evidence in Sotomayor’s life, legal career or judicial record of her ever acting like a racist.  Blow contrasts Sotomayor’s record with that of Chief Justice John Roberts, who was reported by Newsday magazine to have made racist and sexist jokes while working in the White House for the President Reagan.  What is most significant is that Roberts didn’t just talk the talk, he has spent his entire career walking the walk, working to roll back the civil rights gains of women and minorities from the 1960s and 1970s.  As Bobby notes below, quoting Jeffrey Toobin, Roberts has continued this pattern as Chief Justice, ruling against criminal defendants, non-white civil rights plaintiffs (he ruled in favor of the white plaintiff challenging the use of race to avoid the re-segregation of Seattle public schools) and plaintiffs suing corporations.  Does that mean Roberts is a racist?  Not necessarily, but as Blow observes, there is a heck of a lot more evidence of his racism than there is of Sotomayor’s.

Blow’s editorial is so powerful and eloquent that I really don’t have much to add.  What I can add, however, is a bit of context to the speech that has gotten Sotomayor into so much hot water.  In a speech during a symposium on Latino judges, hosted by La Raza Law Journal, Judge Sotomayor said that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  Why would Sotomayor say such a thing?  It is clear from reading her speech that Sotomayor was asked to comment on how her experience as a Latina woman colors her perception of issues on the bench.  This subject is understandable given the Critical Race Theory roots of the La Raza publication that hosted Sotomayor’s speech.  At the risk of over-simplification, one theme of critical race theory is questioning the assumption that law is neutral and un-biased, and examining the ways in which our laws reinforce the existing power structures in our society, including the privileging of the concerns of white people, men, and the rich.

I have no idea what Sotomayor thinks about critical race theory, but it is clear from her speech that she is responding to this CRT critique of the law.  In her speech, Sotomayor describes her personal experiences as a “NewYorkrican” and acknowledges that these experiences have an effect on how she sees the world.  But in a much less quoted remark at the end of the speech, Sotomayor goes on to observe, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  That’s the most we can hope for from any judge, and Sotomayor’s judicial record reflects the fact that she has been pretty successful at it.

In his majority opinion striking down two local school districts’ attempts to use race as one factor in school assignments in order to reduce racial stratification in the public schools, Justice Roberts famously noted, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  I agree with Roberts’ sentiment, but I also agree with the Critical Race Theorist view that race discrimination is more complicated than Roberts’ remarks suggests – that we are all affected by unconscious bias.  Given the choice between Roberts’ overly simplistic remark and Sotomayor’s sophisticated evaluation, and the choice between their records on racial issues, I prefer Sotomayor.

Just when some influential scholars are championing the idea that not all the members of the Court should be lawyers, Chief Justice Roberts embraces the view that it would be good for all the members of the Court to be former federal appellate judges. For the first time in American history all Supreme Court Justices had been federal appeals court judges. Prior to this questionable development ‘the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science.’ But the new composition of the Court has seen ‘the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?’ According to Roberts, the result is ‘a more legal perspective and less of a policy perspective.’ In the erroneous jargon of the day, the Court now interprets the law rather than making it. Can this be right? The Chief Justice is oblivious to the possibility that the more narrowly defined criterion for Court membership the more likely the Court will become committed to a perspective unreflective of the concerns of ordinary Americans.  Without such a perspective, Supreme Court arguments are destined to mimic arguments over how many angels fit on the head of a pin. As Adrian Vermeule explains, “[o]n epistemic grounds, sensible institutional design demands a modicum of professional diversity among the arbiters of the law. None of this requires us to impugn the motivations of lawyers or of the Court’s members.  It only requires a willingness to see the epistemic benefits of professional diversity along with other types of diversity.” Adrian Vermeule, Law and the Limits of Reason 23 (2009). Epistemic diversity, in this passage, refers to the idea that law, as reflective of society in general and the different categories of knowledge in American society in particular, requires different methods for deciding complex and stylized conflicts in practical reasoning. Consequently, “the basic suggestion is that it is bad, on epistemic grounds, that all of the Supreme Court’s members are lawyers.  Nothing in law or elsewhere requires this, and in a world of substantial common-law-making by the Justices (both in nominally constitutional and in nominally statutory cases, it is a bad idea to have all the Court’s membership drawing upon the same, highly correlated sources of professional training and information.” Id. Since constitutional conflicts typically involve philosophical, political theoretic, historical, and sociological issues, confining the qualifications for judges to a narrow, legalistic domain seems ab initio, a bad idea.

The Chief Justices’ perspective derives from an ill-advised commitment to the discredited dichotomy between law and politics. Roughly, law is neutral, impartial, and requires an autonomous, independent epistemic base, while politics concerns contentious policy conflicts reflecting only the values of political partisans.  Together with this failed dichotomy Chief Justice Roberts’ view depends upon a tendentious dichotomy between fact and value. See Hilary Putnam, The Collapse of the Fact/Value Dichotomy and Other Essays (2004). In this view, facts are objectively verifiable while values are subjective and relative. Both the law and politics dichotomy and the fact/value distinction rest on failed jurisprudence and a troubling ontology. Building these elements back into the jurisprudence of the Court will create either a Frankenstein monster of judicial tyranny or a Court irrelevant to American controversies, or in different cases, both.  This Chief Justice’s recommendation to return to some halcyon era where judges perform like baseball umpires will continue to exacerbate the anomaly of a life-tenured, unelected Court running roughshod over a republican democracy. Since amending the Constitution through Article V is so difficult, a Robertsian Court can permanently thwart the reflective judgments of generations of majorities. American deserves better. Click here for Roberts on judges as umpires.

At a constitutional law conference that I recently attended, a friend of mine commented, “We always seem to go back to Reconstruction.”  I agreed.  For many of us, Reconstruction was the Second Founding, when the People repaired the pro-slavery constitution and replaced it with one that commits the federal government to protecting individual rights.

The Reconstruction era is central to my research about congressional protection of rights of belonging, those rights that promote an inclusive vision of who belongs to the national community of the United States and facilitate equal membership in that community.  That era marked the beginning of Congress’ commitment to protecting rights of belonging, and the Reconstruction Amendments (13th, 14th and 15th) assigned that role to the federal government in general and to Congress in particular.  When I read the Reconstruction era congressional debates, I am always struck at how relevant those debates over individual rights and the extent of the government’s responsibility to protect those rights still seem today.

Until recently, the positions of constitutional scholars on the meaning of Reconstruction tended to correlate fairly predictably with our political leanings.  Those who believe in a broad reading of the Reconstruction Amendments tend to be more liberal, while conservatibe scholars tended to support a more narrow reading of those Amendments and the Civil Rights statutes enacted during that era.  Indeed, as Professor Pamela Brandwein has described in her excellent book, Reconstructing Reconstruction, since the Reconstruction Era, debates over its meaning have closely tracked the politics of the times in which those debates occurred.

This year, however, we are faced with a change in the political dynamics of the debate over Reconstruction.  the Supreme Court’s ruling in D.C. v. Heller that the Second Amendment protects an individual right to bear arms has triggered a revival of the classic debate over whether the 14th Amendment incorporated the entire Bill of Rights against state governments.   Conservative scholars who in the past have been wary of a broad federal role in protecting individual rights now advocate the position of full incorporation.  Conservative lawyers are now calling for courts  to overturn such post-Reconstruction relics as U.S. v. Cruikshank, in which the Court espoused a limited view of incorporation when it rejected the argument that the victims of the Colfax Massacre were deprived of their federal rigths, including their right to bear arms, when they were murdered by an angry racist mob; and The Slaughterhouse Cases, in the which the Court seemed to reject the doctrine of incorporation.

For those of us who have long believed in full incorporation, this is good news.  Will the Second Amendment end up being the vehicle for overturning the Court’s erroneous anti-incorporation rulings of the past?  It’s certainly possible.  Justice Scalia’s majority opinion in Heller practically begged a challenge to the Court’s previous holding against the incorporation of teh Second Amendment.  Now that conservatives, too, are seeing the light and going back to Reconstruction, full incorporation could be on the way.

John McCain continues to discuss earmarks as though they are the second greatest threat to America, after radical Islam, of course. He suggests that earmarking – the practice of a congressman or senator directing how specific funds in an appropriations bill will be spent – are the budget-busting bane of America’s existence. However, given how earmarks work, McCain’s approach to earmarks will merely result in block grants to governors like his running mate Sarah Palin or merely guarantee complete executive branch control over government spending. What it does not do is require fidelity to budget cutting or budget balancing.

The flap over the so-called Bridge To Nowhere is instructive. Through an earmark pushed by Senator Ted Stevens (R-AK) and Representative Don Young (R-AK), $___ million was appropriated for the Bridge to Nowhere – a bridge connecting the airport on Gravina Island serving Ketchikan, Alaska to the mainland. Eventually, after $40 million [of the appropriation] was spent to build an access road to the bridge site, the Alaska DOT realized that the appropriation would be insufficient to build the bridge. Alaska essentially received a block grant when Governor Palin cancelled the project, used much of the remainder of the money for various transportation projects around Alaska and put the rest away.

Under a McCain Administration, the Bridge appropriation would have been canceled and reallocated by DOT staff. Either Sen. Stevens and Rep. Young would have been able to convince the staff of the value of the project or not. However, the only distinction between this situation and the Bridge To Nowhere situation is who makes the decision – the executive branch (with input from Congressmen and lobbyists) or Congress (with input from state officials and lobbyists).

McCain may prefer that the executive branch rather than the legislative branch make the allocation decision. However, from a constitutional standpoint, there is nothing inherently wrong with Congress making the allocation decision.

Last Friday evening, Bill Moyers interviewed Sanford Levinson, one of the most creative, provocative, and influential constitutional scholars of his generation. The topic of the interview was Professor Levinson’s 2006 book entitled Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Begin Correcting It) [hereinafter cited as "OUC"] which ECA discussed earlier this year. The book is an irreverent tour de force depicting how the Constitution prevents American government from consistently expressing the voice of the people. Levinson draws his bow and takes aim at the Senate, the Electoral College, the presidential veto, life tenure for federal judges, and a host of other undesirables hitting the bull’s-eye in every case. Unlike most other critics of the Constitution, however, Levinson is not content in merely presenting a litany of democratic complaints and leaving the matter there. Instead, Levinson calls on We the People to petition Congress to permit Americans to vote on the following proposal:

Shall Congress call a constitutional convention empowered to consider the adequacy of the Constitution, and, if thought necessary, to draft a new constitution that, upon completions, will be submitted to the electorate for its approval or disapproval by majority vote? Unless and until a new constitution gains popular approval, the current Constitution will continue in place. OUC, p. 11.

In the Moyers’ interview, Levinson amplifies on how the participants of this second constitutional convention will be selected.

Well, since this is the most often asked question, especially by friends and members of my family, I have an answer to it. And I’m not so fearful, for a number of different reasons. First of all, how would I choose members of the convention? My answer is to go back to ancient Greece, or to look at the way we choose juries. And I would have 700 or so of our fellow citizens chosen at random. Meet for two years, pay them the salary for those two years of a Justice of Supreme Court, United States Senator, because they would be fulfilling the highest possible function of citizenship. Give them time to reflect and learn about these issues.

Levinson wants to highlight the Constitution’s Preamble which says: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, [sic] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The Preamble, for Levinson, is the core sustaining value and end toward which the other Articles of “the single most important part of the Constitution” (OUC, p. 13) because:

It announces the point of the entire enterprise. The 4,500 or so words that followed the Preamble in the original, unamended Constitution were all in effect merely means that were thought to be useful in achieving the great aims set out above. It is intended the ends articulated in the Preamble that justify the meaning of our political institutions. And to the extent that the means turn out to be counterproductive, then we should revise them. Id.

The Preamble represents, in the words of the ordinary language philosopher J. L. Austin, a performative utterance. The Preamble doesn’t merely convey information. Rather, it brings into existence the very document for which it is an integral part. Alternatively stated, the Constitution is born with the collective speech act which is the Preamble. In Levinson’s view, the Preamble is “magnificent. And [he thinks] we ought to think about it almost literally every day, and then ask, ‘Well, to what extent is government organized to realize the noble visions of the preamble?’ That the preamble begins, ‘We the people.’ It’s a notion of a people that can engage in self-determination.” Levinson’s commitment to the Preamble reveals that any attempt to paint him as some naive, wide-eyed utopian willing to scrap the 200 plus year document without any idea of what to replace it with is decidedly erroneous. Levinson’s faith in the underlying normative core of the Constitution–the Preamble–is deep and pervasive.[1]

In defense of Levinson’s important project, one might say that the 1787 document together with the 27 amendments constitute a first draft of how Americans have chosen to express the Preamble’s ideals. Understood in this manner, Levinson’s proposal is far less of an intemperate and irresponsible rejection of the Constitution than a call for the redeployment of the Preamble’s ideals in contemporary America. Levinson’s proposal, then, is to initiate a conversation to consider whether to replace the 1787 document which may have been satisfactory for the founding generation with one which is more suitable to our current democratic needs.

It’s terribly important not to scrap this project by insisting upon a distinction between a democracy and a republic. While it may be true that some of the founders saw democracy as the enemy of republicanism, today these political ideals are far less distinguishable. The idea of a representative democracy, constrained by various filters designed to create a government capable of expressing the reflective will of the people, is a good bridge between narrower and ancient conceptions of democracy and republicanism. Few Americans embrace direct democracy whatever that would look like in contemporary America.[1] And even fewer democrats embrace unconstrained majority rule. Moreover, America’s constitutional culture looks askance at a republicanism which merely pays lip service to the reflective will of the people. Accordingly, the notion that the democratic defects of the Constitution can be papered over simply by insisting that the Founders sought a republic not a democracy is not especially illuminating; indeed, it’s downright misleading. Whatever we call the political philosophy underlying the Constitution, consent must be an ineliminable feature. And objections to the Constitution in contemporary society, along the lines of Levinson’s critique, are replete with obstacles for realizing systematically and consistently the consent of the governed. Of course, one can force a distinction between democracy and republicanism by transmogrifying one or the other conception into a distorted replica of itself–for example by defining democracy as simply majority rule–but other than scoring a polemical point such a transformation isn’t conceptually or practically significant.

No one need agree with Levinson regarding all, or even any, of his arguments. But everyone–constitutional scholars, and more important, reflective American citizens–should confront the arguments in his book. We are all indebted to Sandy Levinson, not only for his wonderful book on fixing American constitutionalism, but also for his extraordinary career as a public intellectual and as a patriot who always gives his best to America.
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[1] It’s not clear whether Levinson believes the Preamble to be an entrenched feature of the Constitution, one that the second constitutional convention cannot amend. If so, the entrenched Preamble seems to have its own democratic deficits. If not, then Levinson must be willing to endure the new constitutional convention jettisoning the Preamble entirely, or amending it to say, “We the States” or some other reactionary change in its text, for example, adding “Under God” or “life begins at conception,” or “‘marriage is a union of one man and one woman.” Indeed, it is virtually guaranteed that some anti-democratic provisions will be included in the new constitution. Upon realizing this, one can reject Levinson’s entire project or acknowledge ruefully that a republican democrat must be prepared to lose some important battles even over the basic structure of the society.

[2] An exception might be Mike Gravel’s Philadelphia II project.

Credit for Photo of Levinson

Credit for Third Image

As an intellectual enterprise “constitutional interpretation” is one of the more essentially contested forms of inquiry. This doesn’t seem to trouble members of the constitutional community. Jurists will continue to fight the “interpretation wars” knowing, if they’re not self-deceived, that no one methodology or system of methodologies will ever succeed in capturing the imagination of the constitutional community, including inter alia, courts, judges, academics, attorneys, and informed citizens. Of course some jurists claim their judicial interpretations are governed by one interpretive methodology or discrete set of interpretive methodologies, but examining their decisions will almost always reveal that they are unfaithful to even their own publically expressed interpretive commitments. No one judge’s record reveals consistency to one identifiable interpretive methodology. Judges are eclectic in choice of methodology and so, of course, are courts.[1]

Judges and scholars can be found advancing textualism–just read the Constitution’s text, originalism–just consult the public meaning of the text or the intentions and purposes of the Founders who framed the text. And, of course, there are a host of other “modalities” of constitutional interpretation. However, to any impartial observer, it seems obvious that that the wars over interpretive methodology will never end. And that’s disconcerting because the interpretation wars block free and undistorted conversation about substantive constitutional issues. Constitutional scholars devote their time and resources refining the “correct” form of textualism or when precedent should be overturned, and many other such distracting questions. Consciously or not, they do this in order to avoid addressing the substantive constitutional conflicts that drive our controversies. But suppose, the constitutional community took the normative turn explicitly and turned to discussing which kind of substantive questions with yield which kinds of powers and rights. The interpretation wars make jurists believe that they are self-critical about constitutional interpretation, and that might be true. However, they should rather be self-critical as to why they devote most of their opinions to interpretive strategies and institutional questions and, cutting to the chase, they why they are not devoted to ascertaining the substance values underlying the Constitution as a normative document.

What if the Founders had included in the Constitution interpretive Constitution some of the following interpretive rules: (1) interpret the Constitutional text according to its public meaning, (2) interpret the constitutional text according to what the Founders intended the text to mean, or their purposes in including the various textual provisions, (3) interpret the Constitutional text with its structural features—separation of powers, federalism, and individual rights unless other normative constitutional values indicate otherwise. Would any of these instructions or combination of these instructions end the interpretation wars? Two approaches suggest themselves: (1) The Self-Execution Approach–the instructions speak for themselves and so the interpretation wars are superfluous, and (2) The Interpretive Approach–since the instructions are part of the constitutional text they require interpretation just as much as the existing provisions of the constitutional text require interpretation. If interpretation is unnecessary and the self-executing approach prevailed there would be no need for interpretation and therefore the interpretation wars would never have begun. However, since there is need for interpretation, there’s no getting around that interpretation is required, so to speak, all the way down with all constitutional provisions even the instructions about how to interpret the Constitution text. Hence, the Founders did (and could do) little to resolve the interpretation wars.

One can argue that the Declaration of Independence, the Preamble of the Constitution, the bill of right, and the Civil War Amendments provide substantive interpretive instructions for interpreting the rest of the document. Consider the Preamble’s noble commitments: “We the people of the United States, in order to form a more perfect union,
establish justice, insure domestic tranquility, provide for the common defense,
promote the general welfare, and secure the blessings of liberty to ourselves
and our posterity, do ordain and establish this Constitution for the United
States of America.” Now there exist no bridge principles tying the Preamble directly to the organizing principles creating the United States government. However, the absence of such direct connections should not condemn the Preamble to merely a hortatory text, with a pretty face, but not much substance. Perhaps the problem lies in the fact that conceptual status of the Constitution–as law or higher law–has been blurred. Requiring two senators from each state is certainly higher law–established with a supermajoritarian ratification process, but it is also ordinary law. Just try to be sworn in as the third senator from the state of Virginia. You better expect a battle to block you from taking the oath.

Don’t get me wrong, the view expressed here regarding “interpretation all the way down” would not permit the Preamble to function as self-executing interpretive instructions of constitutional text. Nothing written down can appeal only to itself for its proper interpretation. It would, however, place interpretive instructions–for normative constitutional inquiry–which might soften our constitutional conflicts and end or minimize the interpretation wars which compel new generations of jurists, like Sisyphus, to roll their favorite interpretive boulder up the mountain promising a resolution of the interpretation wars only to be astonished by the fact that just when they think victory is in sight, their “novel” theory of constitutional interpretation falls back down the mountain and on the way down the mountain, these jurists can virtually shout a warning to a new generation of jurists that there’s no winning the interpretation wars. Dispense with the boulder and start arguing substance.

Indeed, one could successfully argue that the conventional constitutional predilection towards finding and defending the correct constitutional methodology and the battle over which institution should interpret the Constitution represents what can be labeled “constitutional denial.” This state of mind, perhaps like Sisyphus, simply is incapable of identifying the futility of the interpretations wars. Those senior academics suffering from constitutional denial simply pass on to their students the need to answer two central constitutional questions: (1) How should the Constitution be interpreted? and (2) Who should do the interpreting? What’s lost in this intergenerational process is the ability to recognize futility. Recall that the war mongering computer in the motion picture “War Games” was finally taught the notion of futility, and his lesson saved the nuclear destruction of the world. We can learn something from its lesson. “The only correct move in this (interpretation) game is not to play.” American constitutionalists should take this advice.
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[1] The desirability of the Court and/or
individual justices adopting eclectic interpretive strategies was
advanced by Professor Vicki C. Jackson, (Georgetown) at an symposium
honoring the work of Mark Tushnet (Harvard) at Quinnipiac University this fall.

American politics is in the grip of two myths about judicial constitutionalism. The first myth is that hot-button constitutional controversies have one, definite right answer. The one right answer might be difficult to find, but there is no doubt that it exists. Usually these “one right answers” correspond to what the jurist, scholar, attorney, or citizen think the right answer is. How convenient! The second myth is that judges are conspicuously endowed with necessary expertise to discover these answers in the Constitution and constitution practice. As a result, the Supreme Court has the final say over how to resolve constitutional conflicts. Law is not like politics. Law is neutral, objective, and real unlike politics which is just a matter of opinion. Although the other branches of government, the states, and the people also have a say in ascertaining constitutional meaning, when push comes to shove, the Court typically, should have the final word. After all, elected officials and citizens are all partisan players; they are all represent Madison’s treaded factions or the building blocks of factions. Removing the Court from constitutional interpretation and construction or even disciplining the Court with electoral oversight is madness. Only the Court can say the people from themselves.

One need not deny the existence of constitutional truth to regard the two myths as fallacious and inimical to the common good. One only needs to say that no on ever has yet devised a methodology which can be embraced by all or most judges. None of the familiar methodologies–textualism, originalism, historicism, structuralism, stare decisis, or pragmatism–has achieved a reflective consensus as the correct methodology for authorizing judicial decisions. Ironically, in this view, thought there is one right answer for every constitutional controversy, candidates for the correct methodology for finding the one right answer are many and incompatible. So there’s one right answer, but no accepted means of finding it. Is this constitutional law, or have we mischaracterized of most fundamental political practice?
Attempts to include all the familiar methodologies into some hierarchical or lexical structure are bound to fail. Why? Because in a free society where different people are committed to conflicting political perspectives and to different methodologies in support of their perspectives, it is inevitable that reasonable disagreement will be inevitable and pervasive. Let’s be clear about what this means. The principle of the persistence of reasonable disagreement does not mean anything goes or that each and every person’s conception of the correct methodology is equal to each and every other person’s. What it does mean is that in any historical period certain candidates for the correct methodology will exist and no reflective consensus will emerge and stick around among the most informed and knowledgeable persons in the constitutional community; nor will such consensus be reached among the people. The concepts critical to constitutional “law” are essentially contested, and the burdens of judgment–the difficulties and mistakes associated with deriving justified belief–will prevent consensus.

If this is so, most, if not all, constitutional controversies will have more than one correct answer in the sense of more than one answer that is intelligible, coherent, defensible, historically grounded, passing for a rational picture of constitutional structure, and most importantly based in a plausible political philosophy. Consider the question of affirmative action. One side says that “racial equality” precludes using race in policy decisions even for benign intentions. The reason for this conception of “racial equality” is that race-conscious programs perpetuate a dangerous practice and will inevitably injure both the majority race–depriving its members of what they believe to be just deserts–and to the minority race–who are infantilized and stigmatized by race conscious public policy. The other side says “equality” in the first sense is a regulative ideal which must be tempered by context. When a community has practiced radical racial oppression through slavery and segregation, the members of the oppressed race would need to be super-human if their oppression did not prevent them from competing equally once racially invidious laws are no longer tolerated. This isn’t paternalism; it’s reality. Both these views are defensible and both derive from coherent views of “racial equality.” But rational argument will never settle this issue. Ideally, in a republican democracy after all the reflective deliberation and discounting distorting influences of the deliberative process, when consensus cannot be achieved, voting kicks in to settle the matter. And this reflects precisely our present practice. After reading briefs, conducting research, after oral argument and hearing the reflective views of one’s judicial colleagues, the members of the Court vote. In these cases, the result is typically 5-4 for whichever conception of “racial equality” a majority of the Justices embrace. Well, if voting is inevitable, why should the dispositive vote be in the Court? When Justices deliberate and vote on affirmative action plans, they are engaged in politics. Not partisan, smoke filled room politics perhaps, but certainly political philosophy and public policy. Why shouldn’t the people or the representatives decide what the will of the community is regarding affirmative action and other hot-button constitutional controversies? No satisfactory answer to this question has ever been given.

We need to re-think American judicial constitutionalism. One, but not the only, good place for that re-examination to begin is in a second constitutional convention. Last month ECA suggested one structural change that might promote constitutionalism in a republican democracy. Listen to some of the issues that might arise in such a convention, issues that transcend merely focusing on the poverty of judicial constitutionalism.

On 19 October 2007, a group of the constitutionally dissatisfied will hold a mock constitutional convention in the Andrew Mellon Auditorium in Washington, DC. From such beginning major constitutional change can emerge. But American citizens must be willing to pay their fellow citizens the required respect to listen to the complaints.

During the 2000 presidential election, then governor, George W. Bush was asked who his favorite political philosopher was. He replied that his favorite political philosopher is Jesus Christ. One wonders whether Mr. Bush has ever read a book on a traditional political philosopher, for example, Hobbes, Locke, Rawls, or Nozick. For that matter has he ever read a book about George Washington, James Madison, or Thomas Jefferson? Consider Robert Sheer’s piece at the Huffington Post. It can be read as revealing that Mr. Bush is simply ignorant of American constitutional and political traditions. As if that isn’t bad enough, it can also be read as revealing that George W. Bush is simply the authoritarian, monarchist the Founders justifiably feared and hoped the American constitutional system could steer clear of.

George W. Bush is the imperial president that James Madison and other founders of this great republic warned us about. He lied the nation into precisely the “foreign entanglements” that George Washington feared would destroy the experiment in representative government, and he has championed a spurious notion of security over individual liberty, thus eschewing the alarms of Thomas Jefferson as to the deprivation of the inalienable rights of free citizens. But most important, he has used the sledgehammer of war to obliterate the separation of powers that James Madison enshrined in the U.S. Constitution.

Is it just ignorance on Mr. Bush’s part if, as many suspect, he could not name any political philosopher at all and so hoped by naming Jesus Christ he would score some points with the fanatical religious right? Or is that just a clever ruse to cover something more sinister? Was Mr. Bush secretly conspiring with Mr. Cheney to create the new American or rather the new postmodern Anti-American? Such a figure would publicly insist on the importance of American constitutional traditions but secretly not give a damn. Although not directly answering these questions, Mr. Sheer’s piece should be read by anyone admiring the political philosophic instincts of Madison, Washington, and Jefferson or who is deeply troubled by Mr. Bush and Mr. Cheney’s contempt of these instincts. Mr. Sheer, as usual, has written a piece that should have a wide readership. Check it out!

Bill Moyer interviewed Bruce Fein and John Nichols, two unlikely joint-crusaders, on the possibility of impeaching both the President and the Vice-President. (You can see it here.)The bottom line, especially for Mr. Fein, is that impeachment is essential for constitutional, not personal, reasons. Both Messrs. Bush and Cheney have committed political crimes and, if they are not held accountable, a precedent will be created which will lie around like a loaded gun for future lawless executives to take pot shots, or more likely with several such precedents lying around, broadsides, at the Constitution. (Keep in mind once novel executive powers are created out of whole cloth, future presidents will have a tough time restraining themselves from using them. That’s simply the modus operandi of power.)

Fein and Nichols contend that impeachment is an organic process initiated by American citizens, communicated to their representatives, and finally implemented by Congress. This organic process has already begun with American citizens doing their part: 45% of Americans are in favor of beginning impeachment hearings against Mr. Bush and 54% in favor of impeachment hearings for Mr. Cheney. Moreover, the process of impeachment will have the salutary consequences of educating Americans on why the Framers thought impeachment such an indispensable feature of their constitutional handiwork. What we need now is courageous Representatives and Senators whose loyalty is not to the President or to their Party, but to the Constitution, even when that exacts the terrible price of losing an election. These heroic members of Congress–Republicans, Democrats, and Independents–must join forces to show the nation and the world that the American Republic cannot and will not tolerate lawlessness in the Executive branch. Fein eloquently conveys that there is an exhilarating, but ineffable, attitude or feeling of loyalty–a living commitment if you will–to the Constitution that derives from the deepest recesses of a person’s character and that this loyalty should transform a politician into a statesman whose steadfast conviction is to protect the Constitution at any cost to herself or to her Party.

What will history’s verdict be on United States citizens and their governmental representatives in Congress if we do not at least try to remove Bush-Cheney from office? Two fundamentally important reasons exist for impeaching Bush-Cheney and removing them from office. The first reason emphasizes the importance of getting Messrs. Bush and Cheney, in Keith Olbermann’s words “two men who are now perilous to our Democracy, away from its helm.” The second reason favors impeachment because only by doing so do we preserve (or reclaim) the moral integrity of the American character. Now, with a majority of Americans in favor of impeaching Mr. Cheney and a virtual tie between those who favor impeaching Mr. Bush and those opposed, it is time for the Democrats to act.

Impeachment is not merely a political means of saving this country from over 500 more days of the worst executive branch in American history; it is a moral imperative if citizens of other nations and more important, future generations of Americans are to take this current generation of Americans seriously. Our integrity–the very moral fabric of present day Americans–is on the line. We must reclaim our character for its own sake and because if we naively demur, attacking Iran is almost certain. Seeking accountability from the President and Vice-President will prevent such an attack from taking place. But moreover, it will show that the United States Constitution provides mechanisms for ridding the country of incompetent, dangerous, and malevolent “leaders.” The Constitution’s impeachment provision will prove to be completely vacuous unless we at least try to impeach Mr. Bush and Mr. Cheney.

Iraqi officials are already advising their constituents to arm themselves for fear American troops will bring the troops home sooner than anyone thought. With the writing clearly on the wall that the United States will leave Iraq worse off than under a brutal, sociopathic dictator, Saddam Hussein, it is simply heart-breaking to learn of the deaths of more American soldiers for the sake of an egregiously reckless, immoral venture. Let’s honor those soldiers who have made the ultimate sacrifice by beginning to redeploy those still living. Lets take them from harm’s way in the winless context of urban fighting and move them to the borders of the fractured nation and to the oil fields. And let’s do so while holding impeachment hearings to determine the truth about those who orchestrated this debacle.