The Constitution's Political Deficit
Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative branch will not be even remotely representative, and that the Executive branch will likewise, at least on occasion, fail to represent the will of the people. This democratic deficit ought to cause us concern. We should at least have the luxury of debating the point.Thus, I think Levinson's claim is essentially right, and I would like to make two friendly amendments to his proposal. There is, indeed, a worrisome democratic deficit in our own constitutional scheme. I suggest, however, that there are two additional problems with our constitutional practices, besides those Levinson has flagged for revision, that also impact detrimentally our democratic commitments. Echoing Levinson's framework, I would call the first of these two additional problems a "political deficit," and the second a "legal deficit." Our current dilemma exists not only because our written Constitution clearly tilts against representative democracy in the way Levinson decries. Our constitutional practices also tilt against politics, democratic or otherwise, and the ordinary law - legislation - that is its product. These political and legal deficits also deserve our critical attention.
Katrina, the Constitution, and the Legal Question Doctrine
Does the Fourteenth Amendment and its Equal Protection Clause—the promise that no state shall deny “equal protection of the laws”1—require that public officials, either state or federal, use their sovereign power in such a way as to reduce debilitating poverty? More modestly, does this Constitutional commitment to the “equal protection of the laws” require that public officials aim to ameliorate, if not eliminate, the multiple vulnerabilities of this country’s poor? Alternatively, isn’t it possible that the Fourteenth Amendment’s grand, Constitutionalized guarantee of equality— borne, after all, of struggles over enslaved laborers—carries an anti-caste or anti-subordination mandate, and is therefore at least in tension with the exploitation in the workplace of poor people for the economic profit of others? Might the Fourteenth Amendment be read as Constitutionally delegitimating the extreme economic inequalities, the physical and mental insecurities, and the debilitating vulnerabilities to risk that are occasioned by unregulated capital, and as constitutionally mandating a national, a state, or a local response? These questions or questions like them recur, somewhat hauntingly, throughout the Constitutional scholarship of the last half-century. The late Charles Black argued eloquently at the end of his storied career that although the Constitution, as developed by the Court up to the mid-century mark, carried no such meaning, he could nevertheless envision a day in the not too distant future when it might be authoritatively read to so require.2 The Constitution, he claimed, in a declaration of Constitutional utopianism, and all Supreme Court authority to the contrary notwithstanding, contained positive rights to a minimal level of welfare that a more discerning and
The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme. CEPS Paperbacks. June 2010
This book celebrates the tenth anniversary of the Area of Freedom, Security and Justice (AFSJ) by bringing together the views of key practitioners and policy-makers who have played an outstanding role in thinking about and shaping EU policies on freedom, security and justice. 
 
Ten years ago, the member states transferred competences to the EU for law and policy-making in the fields of immigration, asylum and border controls, and began the transfer process for criminal justice and policing. This decade of European cooperation on AFSJ policies has experienced very dynamic convergence, the enactment of a large body of European law and the setting-up of numerous EU agencies working in these domains. Such dynamism in policy-making has not been without challenges and vulnerabilities, however. As this collective volume shows, the main dilemmas that lie ahead relate to an effective (while more plural) institutional framework under the Treaty of Lisbon, stronger judicial scrutiny through a greater role for national courts and the Court of Justice in Luxembourg, better mechanisms for evaluating and monitoring the implementation of EU AFSJ law and a more solid fundamental rights strategy. The contributions in this volume address the progress achieved so far in these policy areas, identify the challenges for future European cooperation in the AFSJ and put forward possible paths for making more progress in the next generation of the EU’s AFSJ.